United States v. Steplight , 51 F. App'x 453 ( 2002 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 02-4088
DAMIAN STEPLIGHT,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Leonie M. Brinkema, District Judge.
(CR-01-264-A)
Submitted: October 31, 2002
Decided: December 3, 2002
Before WILKINS, MOTZ, and TRAXLER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
John Kenneth Zwerling, ZWERLING & KEMLER, P.C., Alexandria,
Virginia, for Appellant. Paul J. McNulty, United States Attorney,
LeDora Knight, Assistant United States Attorney, Alexandria, Vir-
ginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 UNITED STATES v. STEPLIGHT
OPINION
PER CURIAM:
Damian Steplight was convicted of conspiracy to distribute fifty
grams or more of crack cocaine and was sentenced to life imprison-
ment. On appeal, Steplight maintains that the prosecutor made
improper remarks during opening and closing arguments and that his
prior felony convictions should not have been treated as sentencing
factors. We affirm.
To prevail on a claim of prosecutorial misconduct, Steplight must
show: (1) the government’s remarks and conduct were improper; and
(2) the remarks or conduct prejudicially affected his substantial rights
so as to deprive him of a fair trial. United States v. Golding, 168 F.3d
700, 702 (4th Cir. 1999). This court reviews a district court’s factual
findings on prosecutorial misconduct for clear error. United States v.
Ellis, 121 F.3d 908, 927 (4th Cir. 1997). Defense counsel objected at
trial to only two of the prosecutor’s remarks with which he now takes
issue on appeal. With the exception of these two claims, because
Steplight failed to object to the prosecutor’s remarks at the time they
were made, we review for plain error. Fed. R. Crim. P. 52(b); United
States v. Olano, 507 U.S. 725, 731-32 (1993). We have reviewed the
record in light of Steplight’s claims of prosecutorial misconduct and
find no reversible error.
Steplight also maintains on appeal that he was improperly sen-
tenced to life without parole under 21 U.S.C. § 841(b)(1)(A) (2000)
based on two prior felony drug convictions. Steplight argues that his
felony convictions should have been alleged in the indictment as ele-
ments of the offense, and that the jury should have been required to
find him guilty of all elements beyond a reasonable doubt.
In Almendarez-Torres v. United States, 523 U.S. 224 (1998), the
Supreme Court held prior felony convictions are merely sentencing
enhancements rather than elements of an offense and need not be
charged in an indictment. Subsequently, the Supreme Court held in
Apprendi v. New Jersey, 530 U.S. 466 (2000), that other 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
UNITED STATES v. STEPLIGHT 3
and proved beyond a reasonable doubt. Id. at 490. Apprendi specifi-
cally excluded enhancements based on prior convictions from its
holding. Therefore, the government was not required to charge Step-
light’s prior felony convictions in the indictment. Furthermore, this
court has expressly determined that the holding in Almendarez-Torres
was not overruled by Apprendi. United States v. Sterling, 283 F.3d
216, 220 (4th Cir.), cert. denied, 122 S. Ct. 2606 (2002).
Accordingly, we affirm Steplight’s conviction and sentence. We
dispense with oral argument because the facts and legal contentions
are adequately presented in the materials before the court and argu-
ment would not aid the decisional process.
AFFIRMED