United States v. Ferguson , 152 F. App'x 280 ( 2005 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4566
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
TRAVIS LEE FERGUSON,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Terrence W. Boyle, Chief
District Judge. (CR-03-281-BO)
Submitted: August 15, 2005 Decided: October 11, 2005
Before NIEMEYER, TRAXLER, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Thomas P. McNamara, Federal Public Defender, G. Alan DuBois,
Assistant Federal Public Defender, Windy C. Venable, Research and
Writing Specialist, Raleigh, North Carolina, for Appellant.
Frank D. Whitney, United States Attorney, Anne M. Hayes, Christine
Witcover Dean, Assistant United States Attorneys, Raleigh, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Travis Lee Ferguson challenges his 46-month sentence
entered pursuant to his guilty plea to possession of a firearm by
a convicted felon.1 On appeal, Ferguson argues that his sentence
was unconstitutional under United States v. Blakely, 542 U.S. 296(2004). We find no plain error, and thus, we affirm.
In United States v. Booker, 125 S. Ct. 738 (2005), the
Supreme Court held that Blakely applies to the federal sentencing
guidelines and that the mandatory guidelines scheme that provided
for sentence enhancements based on facts found by the court
violated the Sixth Amendment. 125 S. Ct. at 746-48, 755-56.
Ferguson contends that his sentence runs afoul of Blakely for two
reasons: (1) his base offense level was calculated on the basis of
a prior controlled substance offense, while the indictment charged
only a prior felony, and (2) the court enhanced his sentence for
possession of the firearm in connection with another felony, facts
that were neither charged nor admitted. Because Ferguson did not
raise these claims below, review is for plain error. United
States v. Harp, 406 F.3d 242, 247 (4th Cir. 2005).
Regarding the prior controlled substance offense, under
Apprendi v. New Jersey, 530 U.S. 466, 490 (2000), a sentence may be
1
In his plea agreement, Ferguson waived his right to appeal.
However, the Government’s motion to dismiss based on the waiver was
filed over seven months after briefing was completed. Accordingly,
the motion is denied as untimely.
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enhanced based on the fact of a prior conviction. However, when
the sentencing court looks “beyond the charging document, the terms
of a plea agreement, the plea colloquy, the statutory definition,
or any explicit finding of the trial court to determine a fact
about a prior conviction,” then the finding has gone too far afield
from the prior judicial record and falls outside the Apprendi
exception to the Booker holding. United States v. Collins, 412
F.3d 515, 521-22 (4th Cir. 2005). Ferguson was previously
convicted of possession with intent to sell and deliver cocaine.
The district court did not need to make any factual findings about
this conviction to conclude that it was a controlled substance
offense, within the definition of U.S. Sentencing Guidelines Manual
§ 2K2.1(a)(4) (2003). See Collins, 412 F.3d at 515. Therefore,
the enhancement of Ferguson’s offense level under § 2K2.1 was
within the Apprendi exception and did not violate the Sixth
Amendment.
Turning to the firearm enhancement, Ferguson’s offense
level would have been 20 without the enhancement. Because Ferguson
was in criminal history category III, his guideline range would
have been 41 to 51 months.2 Thus, Ferguson’s 46-month sentence did
not exceed the maximum sentence allowed based on the facts he
2
While Ferguson did receive a reduction for acceptance of
responsibility, when determining if Booker error occurred, this
court looks to the guideline range before any reduction for
acceptance of responsibility. See United States v. Evans, 416 F.3d
298, 300 n.4 (4th Cir. 2005).
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admitted. Therefore, Ferguson has failed to show plain error. See
United States v. Hughes, 401 F.3d 540, 546-47 (4th Cir. 2005)
(outlining requirements for showing plain error in Booker context).
Accordingly, we affirm Ferguson’s 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
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