United States v. Wilkes ( 2005 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4563
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
VICTOR GLEN WILKES,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Florence. Terry L. Wooten, District Judge.
(CR-04-145)
Submitted: September 30, 2005 Decided: October 31, 2005
Before WILKINSON, MOTZ, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Michael A. Meetze, Assistant Federal Public Defender, Florence,
South Carolina, for Appellant. J. Strom Thurmond, Jr., United
States Attorney, Rose Mary Parham, Assistant United States
Attorney, Florence, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Victor Glen Wilkes appeals his conviction for possession
of a firearm and ammunition as a previously convicted felon in
violation of 18 U.S.C. § 922(g)(1) (2000). Wilkes asserts that
the district court erred in considering his prior convictions as
part of the sentencing calculus, when those convictions were not
found by a jury beyond a reasonable doubt, and that the court erred
in its imposition of a mandatory minimum sentence under the Armed
Career Criminal Act, 18 U.S.C. § 924(e) (2000) (“ACCA”), because it
impermissibly determined that his prior convictions occurred on
different occasions. Finding no error, we affirm.
This court reviews for plain error when, as here, a
defendant does not object on the grounds of Blakely v. Washington,
542 U.S. 296 (2004), or the subsequent decision in United States v.
Booker, 125 S. Ct. 738 (2005), in the district court. United
States v. Hughes, 401 F.3d 540, 547 (4th Cir. 2005); see Fed. R.
Crim. P. 52(b); United States v. Olano, 507 U.S. 725, 732 (1993).
To establish plain error, a defendant must show that: (1) the
court erred; (2) the error was obvious under the law at the time of
review; and (3) the error affected substantial rights; that is, the
error affected the outcome of the proceedings. Johnson v. United
States, 520 U.S. 461, 467 (1997). Even if all three elements are
established, relief will be granted only if the error seriously
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affects the fairness, integrity, or public reputation of the
proceedings. Olano, 507 U.S. at 732.
Wilkes contends that Blakely calls into question the
Supreme Court’s earlier decision in Almendarez-Torres v. United
States, 523 U.S. 224 (1998), and argues that prior convictions may
not be used in the calculation of his sentence when those
convictions have not been found by the jury beyond a reasonable
doubt. This court rejected this argument in United States v.
Cheek, 415 F.3d 349 (4th Cir. 2005), stating that “the Supreme
Court continues to hold that the Sixth Amendment (as well as due
process) does not demand that the mere fact of a prior conviction
used as a basis for a sentencing enhancement be pleaded in an
indictment and submitted to a jury for proof beyond a reasonable
doubt.” 415 F.3d at 352. Accordingly, Wilkes cannot demonstrate
plain error on this ground.
We affirm the judgment of the district court. We
dispense with oral argument because the facts and legal contentions
are adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED
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