United States v. Smith , 354 F. App'x 830 ( 2009 )

Vacated by Supreme Court, June 21, 2010
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4118
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
DESMOND JAMAR SMITH,
Defendant – Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. W. Earl Britt, Senior
District Judge. (4:08-cr-00033-BR-1)
Submitted: October 30, 2009 Decided: December 9, 2009
Before MICHAEL and AGEE, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Thomas P. McNamara, Federal Public Defender, G. Alan DuBois,
Assistant Federal Public Defender, James E. Todd, Jr., Research
and Writing Attorney, Raleigh, North Carolina, for Appellant.
George E. B. Holding, United States Attorney, Anne M. Hayes,
Jennifer P. May-Parker, Assistant United States Attorneys,
Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Desmond Jamar Smith pled guilty without a plea
agreement to one count of being a felon in possession of a
firearm and ammunition, in violation of 18 U.S.C. §§ 922(g)(1),
924 (2006), and was sentenced to 210 months in prison. Smith’s
sole argument on appeal is that the district court erred in
sentencing him as an armed career criminal because he alleges
that: (i) his four prior North Carolina felony breaking and
entering convictions were not proper predicate offenses under
the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e)
(2006), since they allegedly do not involve conduct that is
purposeful, violent and aggressive and were not punishable by
more than twelve months’ imprisonment; and (ii) his Fifth and
Sixth Amendment rights were violated when the district court
enhanced his sentence based on uncharged facts about prior
convictions neither admitted to by Smith, nor proven beyond a
reasonable doubt. Finding no error, we affirm.
Smith contends that we should review the district
court’s decision that his prior convictions for breaking and
entering are violent crimes under the ACCA in light of the
Supreme Court’s decision in Begay v. United States, 128 S. Ct.
1581 (2008) (holding that a “violent felony” under the
“otherwise” clause in 18 U.S.C. § 924(e) (2006) must be roughly
similar to enumerated crimes), and Chambers v. United States,
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129 S. Ct. 687 (2009) (holding, in accord with Begay, that
failure to report for penal confinement is not a violent felony
under § 924(e)). Begay was decided well before Smith pled
guilty or was sentenced, but he did not object to his armed
career criminal status on this ground in the district court.
Therefore, this issue is reviewed for plain error. United
States v. Olano, 507 U.S. 725, 732 (1993).
We look to our case law interpreting both the terms
“crime of violence” under U.S. Sentencing Guidelines Manual
§ 4B1.1 (2008) and “violent felony” under § 924(e) because the
language defining these terms is “nearly identical [] and
materially indistinguishable.” United States v. Roseboro,
551 F.3d 226, 229 n.2 (4th Cir. 2009). Burglary of a dwelling
is one of the crimes enumerated in § 4B1.2(a)(2) as a crime of
violence. As Smith concedes, this court has held that the North
Carolina offense of breaking and entering is “generic burglary.”
United States v. Thompson, 421 F.3d 278, 284 (4th Cir. 2005)
(following Taylor v. United States, 495 U.S. 575 (1990), in
interpreting § 924(e)). Because the Supreme Court in Begay made
clear that “a felony that is one of the example crimes”
specifically enumerated in the statute (i.e., burglary) is a
proper predicate offense, Smith was properly sentenced as a
career offender.
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Smith also asserts that he lacked the required
predicate convictions for his armed career criminal status
because, under North Carolina’s structured sentencing scheme,
his particular prior convictions were not punishable by a term
of imprisonment exceeding one year. Smith nonetheless correctly
concedes that his argument is foreclosed by our decision in
United States v. Harp, 406 F.3d 242, 246-47 (4th Cir. 2005)
(holding that to determine if a crime is punishable by a term
exceeding one year, a sentencing court should consider “the
maximum aggravated sentence that could be imposed for that crime
upon a defendant with the worst possible criminal history”).
Last, Smith argues that the district court violated
his constitutional rights when it sentenced him as an armed
career criminal because the predicate felony convictions used to
increase the statutory penalties for his offense were not
alleged in the indictment or admitted by him as part of his
guilty plea. This argument fails under controlling circuit
precedent. See Thompson, 421 F.3d at 284 n.4 (holding that an
indictment need not reference or list the prior convictions
underlying the enhancement); see also United States v. Cheek,
415 F.3d 349, 352-53 (4th Cir. 2005) (holding that prior
convictions used as the basis for an armed career criminal
sentence need not be charged in the indictment or proven beyond
a reasonable doubt).
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Moreover, although Smith recognizes that the Supreme
Court has also held that the Government need not plead a prior
conviction in an indictment or present such evidence to a jury
in order to rely on it to enhance a sentence, see
Almendarez-Torres v. United States, 523 U.S. 224, 226-27, 247
(1998), he asserts that Almendarez-Torres was incorrectly
decided, as suggested in Apprendi v. New Jersey, 530 U.S. 466,
489 (2000) (“[I]t is arguable that Almendarez-Torres was
incorrectly decided.”), and Shepard v. United States, 544 U.S.
13, 27 (2005) (Thomas, J., concurring) (noting that “a majority
of the Court now recognizes that Almendarez-Torres was wrongly
decided”) (citations omitted). Though many defendants have
argued that the prior conviction exception set forth in
Almendarez-Torres may no longer be good law, Booker clearly
maintained the prior conviction exception. See United States v.
Booker, 543 U.S. 220, 244 (2005) (“Any fact (other than a prior
conviction) which is necessary to support a sentence . . . must
be admitted by the defendant or proved to a jury”). Thus, while
a sentencing court is not permitted to resolve disputed facts
about a prior conviction that are not evident from “the
conclusive significance of a prior judicial record,” Shepard,
544 U.S. at 25, a determination that a defendant is eligible for
sentencing under the ACCA may be based on a judge’s
determination that the predicate convictions are for violent
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felonies or drug trafficking crimes if the qualifying facts are
inherent in the predicate convictions and the court is not
required to perform additional fact finding. See Thompson,
421 F.3d at 282-83; see also Cheek, 415 F.3d at 354 (holding
that, under the Sixth Amendment, the fact of a prior conviction
need not be submitted to the jury or admitted by the defendant
for it to serve as the basis for a sentence enhancement).
Accordingly, we find that the district court’s armed career
criminal enhancement to Smith’s offense level was not
unconstitutional.
Based on the foregoing, we affirm the district court’s
judgment. 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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