United States v. Humphries , 147 F. App'x 361 ( 2005 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4705
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ERNEST GENE HUMPHRIES, III,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. William L. Osteen, District
Judge. (CR-04-18; CR-04-19)
Submitted: August 10, 2005 Decided: September 19, 2005
Before NIEMEYER, LUTTIG, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Louis C. Allen, III, Federal Public Defender, Greensboro, North
Carolina, for Appellant. Anna Mills Wagoner, United States
Attorney, Michael F. Joseph, 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Unpublished opinions are not binding precedent in this circuit.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:
Ernest Gene Humphries, III, pled guilty to two counts of
bank robbery in violation of 18 U.S.C. § 2113(a) (2000). He was
sentenced to a 151-month term of imprisonment on both counts, to
run concurrently. On appeal, Humphries, challenging only his
sentence, claims that he was improperly sentenced under the United
States Sentencing Guidelines in light of Blakely v. Washington, 542
U.S. 296 (2004), and United States v. Booker, 125 S. Ct. 738(2005).
At sentencing on August 6, 2004, Humphries argued that
Blakely v. Washington, 542 U.S. 296 (2004), invalidated the
guidelines and the career offender provisions of the guidelines.
He also argued that one of his predicate offenses that qualified
him as a career offender, a state conviction for attempted common
law robbery, would not qualify as a crime punishable by a term of
imprisonment of one year if the Blakely holding applied to the
sentencing of the common law robbery case. The district court
rejected these objections.
The Supreme Court held in United States v. Booker, 125 S.
Ct. 738, 746, 750 (2005), that the mandatory manner in which the
federal sentencing guidelines required courts to impose sentencing
enhancements based on facts found by the court by a preponderance
of the evidence violated the Sixth Amendment. The Court remedied
the constitutional violation by severing two statutory provisions,
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18 U.S.C. § 3553(b)(1) (2000) (requiring courts to impose a
sentence within the applicable guideline range), and 18 U.S.C.
§ 3742(e) (2000) (setting forth appellate standards of review for
guideline issues), thereby making the guidelines advisory. United
States v. Hughes, 401 F.3d 540, 546 (4th Cir. 2005) (citing
Booker, 125 S. Ct. at 756-57).
In United States v. Harp, this court, applying the plain
error standard, found that, even if the district court committed
plain error when it determined that the defendant was a career
offender without the elements of that designation having been
charged in an indictment, this court would not exercise its
discretion to correct that error. 406 F.3d 242, 247 (4th Cir.
2005). While Harp viewed the issue through a plain error analysis,
other circuits have directly answered this issue. “Career offender
status is not ‘a sentencing judge’s determination of a fact other
than a prior conviction.’ . . . Booker explicitly excepts from
Sixth Amendment analysis the third component of the crime of
violence determination, the fact of two prior convictions.” United
States v. Guevara, 408 F.3d 252, 261 (5th Cir. 2005). The Eighth
Circuit has ruled that a prior conviction need not be submitted to
a jury or proved beyond a reasonable doubt. United States v.
Marcussen, 403 F.3d 982, 984 (8th Cir. 2005). “Once the sentencing
court determines that a prior conviction exists, it is a legal
question for the court whether the crime meets the ‘crime of
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violence’ definition of § 4B1.2.” Id.; see also United States v.
Schlifer, 403 F.3d 849, 853 (7th Cir. 2005) (the district court did
not engage in impermissible factfinding with respect to its
determination that defendant was a career offender, and his
sentence did not violate the Sixth Amendment). We therefore
conclude that there was no reversible error in applying the career
offender enhancement.
Humphries also argues that one of the underlying
offenses, attempted common law robbery, which counted as a
qualifying predicate offense for the application of United States
Sentencing Guidelines § 4B1.1 (2003), the career offender
guideline, should no longer be counted as a qualifying offense
because post-Blakely, Humphries’ conviction was not punishable for
more than one year. In order for Humphries to be designated a
career offender, the Government had to establish that Humphries had
at least two prior felony convictions for either a “crime of
violence” or a “controlled substance offense.” USSG § 4B1.1(a).
A felony offense is one punishable by over one year in prison.
The pre-sentence report (PSR) cited three qualifying
convictions, when only two are needed to qualify as a career
offender. The PSR lists the convictions for felonious possession
with intent to sell or deliver marijuana, felonious attempted
robbery, and misdemeanor assault with a deadly weapon. Humphries
contends that post-Blakely, on the attempted robbery conviction, he
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could no longer be sentenced to over one year. This is the same
argument advanced by the defendant in Harp and rejected by this
court. Harp, 406 F.3d at 246-47. Finally, as the Government
notes, even without consideration of the contested conviction,
Humphries has the requisite two qualifying convictions needed to
apply the enhancement. We therefore conclude that the district
court did not err in designating Humphries as a career offender and
that the enhancement does not violate the Sixth Amendment.
Humphries also challenges his criminal history category
under the Sixth Amendment, because the facts giving rise to these
calculations were not charged in the indictment or proven beyond a
reasonable doubt. Humphries asserts that the court had to make
factual findings beyond the mere fact of conviction. Although
Humphries points to no specific findings by the district court, he
generally asserts that the factual findings necessary to apply the
guidelines’ criminal history provisions make those provisions very
different from the simple finding of the fact of a conviction.
In Apprendi v. New Jersey, 530 U.S. 466 (2000), the
Supreme Court held “[o]ther than the fact of a prior conviction,
any fact that increases the penalty for a crime beyond the
prescribed statutory maximum must be submitted to a jury, and
proved beyond a reasonable doubt.” Id. at 490. In Booker, the
Supreme Court reaffirmed its holding in Apprendi. See Booker, 125
S. Ct. at 756 (Stevens, J., opinion of the Court). However, this
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court has stated that not all prior convictions fall within the
Apprendi exception framework.
In United States v. Washington, 404 F.3d 834, 842 (4th
Cir. 2005), this court, applying the Supreme Court’s decision in
Shepard, held that relying on facts outside the indictment in order
to conclude a prior conviction for burglary was a crime of violence
that enhanced the defendant’s offense level was plain error.
Humphries’ case is distinguishable from the facts in Washington
because the district court’s assessment of criminal history points
in this case was based on the summary of the convictions in the
presentence report, to which Humphries did not raise any factual
objections, and involved determining only when Humphries committed
the past offenses relative to the date that he committed the
instant offenses. Cf. United States v. Collins, 412 F.3d 515, 522
(4th Cir. 2005) (finding that application of career offender
enhancement did not violate Booker where facts were undisputed,
thereby making it unnecessary to engage in further fact finding
about a prior conviction). We therefore conclude that the district
court’s assessment of criminal history points did not violate the
Sixth Amendment. See Shepard, 125 S. Ct. at 1263 (holding that a
court’s inquiry as to disputed facts in connection with a prior
conviction is limited to the terms of the charging document, a plea
agreement, a transcript of the plea colloquy, or a comparable
judicial record); Washington, 404 F.3d at 842 n.10 (noting that the
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Government’s representations as to the disputed facts were not
specified in the charging and plea documents).
We therefore affirm Humphries’ convictions and sentence.*
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
*
Humphries does not contest his convictions.
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