United States v. Malloy , 201 F. App'x 923 ( 2006 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4068
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JESSIE ELLISON MALLOY,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. William L. Osteen, District
Judge. (1:05-cr-00252-WLO)
Submitted: September 13, 2006 Decided: October 3, 2006
Before WILKINSON, KING, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Thomas N. Cochran, Assistant Federal Public Defender, Greensboro,
North Carolina, for Appellant. Michael Augustus DeFranco,
Assistant United States Attorney, Greensboro, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Jessie Malloy pled guilty without the benefit of a plea
agreement to being a felon in possession of ammunition, in
violation of 18 U.S.C. § 922(g)(1) (2000). The district court
sentenced Malloy as an armed career criminal pursuant to 18 U.S.C.
§ 924(e)(1) (2000), which carries a statutory minimum of fifteen
years’ imprisonment and a maximum of life imprisonment. Malloy
received 188 months’ imprisonment, at the bottom of the range
provided for by the sentencing guidelines, which were made advisory
by United States v. Booker, 543 U.S. 220 (2005).
On appeal, Malloy’s counsel has filed a brief pursuant to
Anders v. California, 386 U.S. 738 (1967), asserting there exist no
meritorious issues for appeal but contending that Malloy’s armed
career criminal designation violates the Sixth Amendment.1 The use
of prior convictions to enhance a defendant’s sentence does not
violate Booker. See United States v. Thompson, 421 F.3d 278, 282-
84 (4th Cir. 2005) (holding that, where the defendant does not
dispute any facts related to his prior convictions, the district
court’s determination of the criminal history category does not
violate the Sixth Amendment), cert. denied, 126 S. Ct. 14631
Although notified of his right to do so, Malloy has not
submitted a pro se supplemental brief.
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(2006).2 We conclude that this challenge to Malloy’s sentence is
meritless.
In accordance with Anders, we have reviewed the entire
record in this case and have found no meritorious issues for
appeal. We therefore affirm Malloy’s conviction and sentence.
This court requires that counsel inform Malloy, in writing, of the
right to petition the Supreme Court of the United States for
further review. Accordingly, we deny counsel’s motion to withdraw
from representation. If Malloy requests that a petition be filed,
but counsel believes that such a petition would be frivolous,
counsel may again move in this court for leave to withdraw from
further representation. Any such motion filed by counsel must
state that a copy thereof was served on Malloy. 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
2
Additionally, Malloy has not rebutted the presumption that
his sentence was reasonable. See United States v. Green, 436 F.3d
449, 457 (4th Cir.) (stating a sentence imposed within a properly
calculated guideline range is presumptively reasonable), cert.
denied, 126 S. Ct. 2309 (2006).
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