United States v. Newsome ( 2006 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4218
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
RONALD SHANE NEWSOME,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. James A. Beaty, Jr.,
District Judge. (CR-03-400)
Submitted: June 6, 2005 Decided: March 23, 2006
Before KING, GREGORY, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Louis C. Allen, III, Federal Public Defender, John A. Dusenbury,
Jr., Assistant Federal Public Defender, Greensboro, North Carolina,
for Appellant. Anna Mills Wagoner, United States Attorney, Robert
A. J. Lang, 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Unpublished opinions are not binding precedent in this circuit.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:
Ronald Shane Newsome pled guilty pursuant to a written
plea agreement and was convicted of one count of being a felon in
possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1),
924(e)(1) (2000). The guideline range calculated by the probation
officer pursuant to the then-mandatory United States Sentencing
Guidelines was 180-210 months’ imprisonment. The presentence
report (“PSR”) reflects that Newsome’s initial base offense level
was twenty-four because he had two prior felony convictions for
"crimes of violence" under the guidelines. The PSR further
reflects that at the time of Newsome’s arrest, a Glock magazine was
found on Newsome’s person, a Glock 9 mm semi-automatic handgun was
found in the glove box directly in front of Newsome, a Smith and
Wesson .40 caliber magazine and two holsters were recovered from
the passenger area of the vehicle Newsome had been in, and at least
one of the firearms found in Newsome’s possession at the time of
his arrest had been reported stolen. Newsome’s base offense level
was thus increased by two levels on the basis that the offense
involved three or more firearms, pursuant to U.S. Sentencing
Guidelines Manual (“USSG”) § 2K2.1(b)(1)(A) (2003), and by an
additional two levels, pursuant to USSG § 2K2.1(b)(4), because the
firearm was stolen. The PSR also reflects an enhancement of
Newsome’s base offense level from twenty-eight to thirty-three,
pursuant to USSG § 4B1.4, comment.(n.1), for being an armed career
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criminal. Newsome received a three-level reduction for acceptance
of responsibility, pursuant to USSG § 3E1.1(a), bringing his
assigned total offense level to thirty. The probation officer
placed Newsome at a criminal history category of VI, pursuant to
USSG § 4B1.4(c)(1). The statutory minimum sentence for a
conviction of possession of a firearm by a convicted felon pursuant
to 18 U.S.C. § 924(e) is a term of imprisonment not less than
fifteen years. Ultimately, the district court sentenced Newsome to
192 months in prison, a five year term of supervised release, and
ordered payment of a $100 special assessment.1
Newsome’s counsel has filed a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), asserting error by the district
court in applying the armed career criminal enhancement to Newsome
in determining his sentence, but concluding that there are no
meritorious grounds for appeal. Newsome filed a pro se
supplemental brief, raising issues relating to the Court’s holdings
in Apprendi v. New Jersey, 530 U.S. 466 (2000), and Blakely v.
Washington, 542 U.S. 206 (2004), and specifically challenging the
§ 2K2.1(b)(1)(A) two-level enhancement (for an offense involving
three or more firearms). Subsequent to the Supreme Court’s ruling
in United States v. Booker, 543 U.S. 220 (2005), this court
1
The district court sentenced Newsome under the mandatory
guidelines scheme in place prior to the Supreme Court’s decision in
United States v. Booker, 543 U.S. 220 (2005), and prior to this
court’s decision in United States v. Hughes, 401 F.3d 540 (4th Cir.
2005).
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accorded Newsome the opportunity to submit supplemental briefing
raising any claims based upon Booker that he wished this court to
consider. He filed a supplemental brief, through counsel,
challenging the mandatory application of the guidelines to his
sentence. In accordance with our discussion below, we affirm
Newsome’s conviction and sentence.
In Booker, the Supreme Court applied the decision in
Blakely to the federal sentencing guidelines and concluded that the
Sixth Amendment is violated when a district court imposes a
sentence under the sentencing guidelines that is greater than a
sentence based solely upon facts found by the jury. Booker, 543
U.S. at 226-27, 245. The Court remedied the constitutional
violation by severing and excising the statutory provisions that
mandate sentencing and appellate review under the guidelines, thus
making the guidelines advisory. Id. at 245.
After Booker, courts must calculate the appropriate
guideline range, consider the range in conjunction with other
relevant factors under the guidelines and 18 U.S.C.A. § 3553(a)
(West 2000 & Supp. 2005), and impose a sentence. If a court
imposes a sentence outside the guideline range, the district court
must state its reasons for doing so. Hughes, 401 F.3d at 546.
This remedial scheme applies to any sentence imposed under the
mandatory sentencing guidelines, regardless of whether or not the
sentence violates the Sixth Amendment. Id. at 547. As stated in
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Hughes, this court will affirm a post-Booker sentence if it is both
reasonable and within the statutorily prescribed range. Id. at
546-47. Further, this court has stated that “while we believe that
the appropriate circumstances for imposing a sentence outside the
guideline range will depend on the facts of individual cases, we
have no reason to doubt that most sentences will continue to fall
within the applicable guideline range.” United States v. White,
405 F.3d 208, 219 (4th Cir.), cert. denied, 126 S. Ct. 668 (2005);
see United States v. Green, 436 F.3d 449, 457 (4th Cir. 2006) (“[A]
sentence imposed within the properly calculated Guidelines range
. . . is presumptively reasonable.”).
In this case, as in Hughes, the district court sentenced
Newsome by applying the guidelines as a mandatory determinant in
sentencing and based upon judicially determined facts found by a
preponderance of the evidence.2 We nonetheless find his sentence
to be constitutionally sound.
First, we find no error in the district court’s
application of the armed career criminal enhancement to Newsome;
thus the five-level enhancement to Newsome’s base offense level was
proper. See United States v. Thompson, 421 F.3d 278, 282, 283-86
2
Just as we noted in Hughes, 401 F.3d at 545 n.4, “w[e] of
course offer no criticism of the district judge, who followed the
law and procedure in effect at the time” of Newsome’s sentencing.
See generally Johnson v. United States, 520 U.S. 461, 468 (1997)
(stating that an error is “plain” if “the law at the time of trial
was settled and clearly contrary to the law at the time of
appeal”).
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(4th Cir. 2005), cert. denied, __ U.S. __, 2006 WL 521274 (U.S.
Mar. 6, 2006) (No. 05-7266) (finding that facts “of” prior
conviction, including those “normally found in conclusive judicial
records,” as compared to facts “about” prior conviction, properly
may be determined by the court by preponderance of the evidence).
Plus, Newsome does not specifically challenge the two-level
enhancement pursuant to USSG § 2K2.1(b)(4). Moreover, both parties
agree that because of the armed career criminal enhancement under
USSG § 4B1.4(b)(3)(B), Newsome’s proper guideline range was 180-210
months. As Newsome’s sentence of 192 months does not exceed the
maximum under this guideline range, we find there was no Sixth
Amendment error.3 See United States v. Evans, 416 F.3d 298, 300-01
(4th Cir. 2005). Finally, because he can show no non-speculative
basis for concluding that the sentencing court might use its
discretion to impose a lesser sentence under an advisory
application of the guidelines, Newsome’s challenge to the mandatory
3
Excluding the challenged enhancements, and before adjusting
for acceptance of responsibility, see United States v. Evans, 418
F.3d 298, 301 n.4 (4th Cir. 2005)(in determining whether Sixth
Amendment error occurred, the sentence imposed must be compared to
the permissible guideline range before adjusting for acceptance of
responsibility), Newsome’s adjusted offense level would be 31,
which yields an attendant guideline range of 188 to 235 months.
The district court’s sentence of 192 months’ imprisonment was thus
within the guideline range even as adjusted for Newsome’s appellate
challenges.
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application of the guidelines is foreclosed by United States v.
White, 405 F.3d 208 (4th Cir. 2005).4
In accordance with Anders, we have thoroughly examined
the entire record for potentially meritorious issues, and have
found none. Accordingly, we affirm Newsome’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
4
We also find Newsome’s challenge to his sentence under
Apprendi to be without merit. The maximum statutory penalty
applicable to Newsome’s conviction is life imprisonment, 18 U.S.C.
§ 924(e)(1), and his sentence of 192 months’ imprisonment is below
that statutory maximum penalty. Hence, Apprendi offers him no
relief.
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