United States v. Jenkins , 159 F. App'x 496 ( 2005 )


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  •                             UNPUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    No. 04-4466
    UNITED STATES OF AMERICA,
    Plaintiff - Appellee,
    versus
    MICHAEL A. JENKINS,
    Defendant - Appellant.
    Appeal from the United States District Court for the Western
    District of North Carolina, at Bryson City. Lacy H. Thornburg,
    District Judge. (CR-02-105)
    Submitted:   November 21, 2005         Decided:     December 19, 2005
    Before WILLIAMS and KING, Circuit Judges, and HAMILTON, Senior
    Circuit Judge.
    Affirmed by unpublished per curiam opinion.
    Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon,
    Assistant Federal Public Defender, Windy C. Venable, Research and
    Writing Attorney, Raleigh, North Carolina, for Appellant. Thomas
    R. Ascik, Assistant United States Attorney, Asheville, North
    Carolina, for Appellee.
    Unpublished opinions are not binding precedent in this circuit.
    See Local Rule 36(c).
    PER CURIAM:
    Michael Anthony Jenkins pled guilty to conspiracy to
    possess with intent to distribute at least fifty grams of cocaine
    base, 
    21 U.S.C. §§ 841
    , 846 (2000), and possessing and brandishing
    a firearm during and in relation to a drug trafficking crime, 
    18 U.S.C. § 924
    (c)(1) (2000). The district court sentenced Jenkins to
    292 months of imprisonment.    Jenkins’ counsel has filed a brief
    pursuant to Anders v. California, 
    386 U.S. 738
     (1967), stating that
    there are no meritorious grounds for appeal, but asserting that
    Jenkins was sentenced in violation of United States v. Booker, 
    125 S. Ct. 738
     (2005).   Jenkins has filed a pro se supplemental brief.
    Finding no reversible error, we affirm.
    Jenkins challenges his sentence as a career offender, see
    U.S. Sentencing Guidelines Manual § 4B1.1 (2002), under Booker.
    Specifically, he argues that his sentence was improperly enhanced
    based on prior convictions.   Because Jenkins did not object below,
    this claim is reviewed for plain error.    United States v. Hughes,
    
    401 F.3d 540
    , 547 (4th Cir. 2005).   This court has held that, where
    the facts are undisputed, the application of the career offender
    enhancement falls within the exception for prior convictions.
    United States v. Collins, 
    412 F.3d 515
    , 521-23 (4th Cir. 2005);
    accord United States v. Guevara, 
    408 F.3d 252
    , 261 (5th Cir. 2005)
    (“Career offender status is not ‘a sentencing judge’s determination
    of a fact other than a prior conviction.’ . . . Booker explicitly
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    excepts from Sixth Amendment analysis the third component of the
    crime     of    violence     determination,       the    fact     of   two     prior
    convictions.”); see also United States v. Harp, 
    406 F.3d 242
    , 247
    (4th    Cir.)    (finding    no   plain   error    in   the     district     court’s
    designation of Harp as a career offender), cert. denied, 
    126 S. Ct. 297
     (2005).      Accordingly, we find that the district court did not
    err in designating Jenkins as a career offender and that Jenkins’
    sentence does not violate the Sixth Amendment in this regard.                     To
    the extent Jenkins alleges that the district court committed error
    under Booker by sentencing him under a mandatory application of the
    guidelines, Jenkins has failed to demonstrate that the plain error
    in sentencing him under a mandatory guideline scheme affected his
    substantial rights.         See United States v. White, 
    405 F.3d 208
    , 223
    (4th Cir.), cert. denied, 
    74 U.S.L.W. 3302
     (U.S. Nov. 14, 2005)(No.
    05-6981).
    In accordance with Anders, we have reviewed the entire
    record in this case and have found no meritorious issues for
    appeal.    We have also reviewed the pro se issues raised by Jenkins
    and conclude they are without merit.          We therefore affirm Jenkins’
    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
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    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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