United States v. Varnim , 155 F. App'x 712 ( 2005 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4325
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ROBERT CRAIG VARNIM,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Spartanburg. G. Ross Anderson, Jr., District
Judge. (CR-03-534-GRA)
Submitted: November 9, 2005 Decided: December 1, 2005
Before WILKINSON, WILLIAMS, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
James A. Brown, Jr., LAW OFFICES OF JIM BROWN, P.A., Beaufort,
South Carolina, for Appellant. Elizabeth Jean Howard, OFFICE OF
THE UNITED STATES ATTORNEY, Greenville, South Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Robert C. Varnim appeals his sentence of forty-six
months’ imprisonment following his guilty plea to one count of
robbery, in violation of 18 U.S.C. § 2113(a) (2000). Varnim’s
counsel filed a brief pursuant to Anders v. California, 386 U.S.
738 (1967), asserting there are no meritorious issues, but
questioning whether, under Blakely v. Washington, 542 U.S. 296(2004), and United States v. Booker, 125 S. Ct. 738 (2005),
Varnim’s sentence was properly calculated by the district court’s
inclusion of an uncounseled 1996 sentence for “Criminal Domestic
Violence” in determining Varnim’s criminal history.* We affirm.
As Varnim raises this issue for the first time on appeal,
review is for plain error. United States v. Evans, 416 F.3d 298,
300 (4th Cir. 2005). To establish that a Sixth Amendment error
occurred during sentencing, a defendant who entered a guilty plea
must show that the district court imposed a sentence exceeding the
maximum allowed based only on the facts to which he admitted. Id.However, this court has recognized an exception to the general rule
in that a district court may enhance a sentence based on the “fact
of a prior conviction” regardless of whether or not it was admitted
to by the defendant or found by a jury. See United States v.
Thompson, 421 F.3d 278, 282, 283-86 (4th Cir. 2005), petition for
*
Varnim was notified of his opportunity to file a pro se
supplemental brief, but did not do so.
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cert. filed, ___ U.S.L.W. ___ (U.S. Oct. 25, 2005) (No. 05-7266).
Such enhancement will not constitute Sixth Amendment error if the
facts necessary to support the enhancement “inhere in the fact of
conviction” rather than being “extraneous to it.” Id. at 283.
Varnim objects to the inclusion of a 1996 sentence for
“Criminal Domestic Violence” in the computation of his criminal
history. In its simple form, this crime constitutes a misdemeanor
punishable by a fine of up to $500 or imprisonment for “not more
than thirty days.” S.C. Code Ann. § 16-25-30 (Law. Co-op. 2003).
The background note to USSG § 4A1.2 specifically allows the
inclusion of uncounseled misdemeanor offenses to the criminal
history computation “where imprisonment was not imposed.” This
commentary is consistent with caselaw interpreting the validity of
uncounseled misdemeanor offenses. See Alabama v. Shelton, 535 U.S.
654, 662 (2002) (concluding the Sixth Amendment does not allow an
uncounseled misdemeanor conviction which “end[s] up in the actual
deprivation of a person’s liberty”); Scott v. Illinois, 440 U.S.
367, 373-74 (1979) (holding an uncounseled misdemeanor conviction
was valid only if fine was imposed in lieu of incarceration).
Nevertheless, Varnim does not contest any facts about his
prior convictions. When the facts about the prior convictions are
undisputed, there is no Sixth Amendment error in utilizing the
prior convictions to enhance a sentence. See Thompson, 421 F.3d at
283; see also United States v. Cheek, 415 F.3d 349, 352-53 (4th
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Cir. 2005) (finding no Sixth Amendment error in utilizing prior
convictions to enhance sentence when facts about prior convictions
are undisputed), petition for cert. filed, ___ U.S.L.W. ___ (U.S.
Oct. 3, 2005) (No. 05-6904); United States v. Collins, 412 F.3d
515, 521-23 (4th Cir. 2005) (finding that when nature of prior
conviction is undisputed, the court makes no factual findings in
determining conviction was crime of violence or controlled
substance offense). Accordingly, we find that Varnim’s argument is
without merit.
In accordance with Anders, we have reviewed the entire
record for any meritorious issues and have found none.
Accordingly, we affirm Varnim’s conviction and sentence. This
court requires that counsel inform his client, in writing, of his
right to petition the Supreme Court of the United States for
further review. If the client requests that a petition be filed,
but counsel believes that such a petition would be frivolous, then
counsel may move in this court for leave to withdraw from
representation. Counsel's motion must state that a copy thereof
was served on the client. 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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