United States v. Mood , 157 F. App'x 588 ( 2005 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4123
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ROOSEVELT O. MOOD,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Charleston. David C. Norton, District Judge.
(CR-04-682)
Submitted: November 9, 2005 Decided: December 5, 2005
Before WILKINSON, NIEMEYER, and LUTTIG, Circuit Judges.
Affirmed by unpublished per curiam opinion.
J. Robert Haley, Assistant Federal Public Defender, Charleston,
South Carolina, for Appellant. Jonathan S. Gasser, Acting United
States Attorney, Alston C. Badger, Assistant United States
Attorney, Charleston, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Roosevelt Orlando Mood pled guilty to a two-count
indictment for possession of a firearm by a convicted felon, in
violation of 18 U.S.C. § 922(g)(1) (2000), and unlawful possession
of body armor, in violation of 18 U.S.C. § 931(a) (2000). He was
sentenced to the statutory mandatory minimum term as an Armed
Career Criminal, under 18 U.S.C. § 924(e)(1) (2000), of one-
hundred-eighty months of imprisonment on Count One and maximum term
of thirty-six months of imprisonment on Count Two, under 18 U.S.C.
§ 924(a)(7), to run concurrently. Mood appeals his sentence.
Mood challenges the district court’s determination that
he is an Armed Career Criminal and the enhancement of his offense
level because the firearm he possessed was stolen, citing
Blakely v. Washington, 542 U.S. 296 (2004), and Booker v. United
States, 125 S. Ct. 738 (2005). Because Mood preserved these issues
by objecting to the presentence report based upon Blakely, our
review is de novo. See United States v. Mackins, 315 F.3d 399, 405
(4th Cir. 2003) (“If a defendant has made a timely and sufficient
Apprendi[1] sentencing objection in the trial court, and so
preserved his objection, we review de novo.”). When a defendant
preserves a Sixth Amendment error, “we must reverse unless we find
this constitutional error harmless beyond a reasonable doubt, with
the Government bearing the burden of proving harmlessness.” Id.1
Apprendi v. New Jersey, 530 U.S. 466 (2000).
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(citations omitted); see United States v. White, 405 F.3d 208, 223
(4th Cir. 2005) (discussing difference in burden of proving that
error affected substantial rights under harmless error standard in
Fed. R. App. P. 52(a), and plain error standard in Fed. R. App. P.
52(b)).
In Booker, the Supreme Court held that the mandatory
manner in which the federal sentencing guidelines required courts
to impose sentencing enhancements based on facts found by the court
by a preponderance of the evidence violated the Sixth Amendment.
125 S. Ct. at 746, 750. The Court remedied the constitutional
violation by severing two statutory provisions, 18 U.S.C.A.
§§ 3553(b)(1), 3742(e) (West 2000 & Supp. 2005), thereby making the
guidelines advisory. United States v. Hughes, 401 F.3d 540, 546
(4th Cir. 2005).
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. Id.Mood claims on appeal that the district court erred in
sentencing him as an Armed Career Criminal. Mood’s argument is
foreclosed by United States v. Thompson, 421 F.3d 278 (4th Cir.
2005), in which we held that sentencing courts may rely on prior
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convictions to invoke the enhancement provided by § 924(e)(1), even
if the prior convictions were not charged in the indictment or
found by a jury, so long as no facts extraneous to the fact of
conviction need be decided. Id. at 282-83. Mood does not dispute
the fact of the prior convictions or identify any “extraneous
facts” that are relevant to this case. We therefore conclude that
no constitutional error occurred in this case.
Mood also challenges the district court’s imposition of
a sentence enhancement based on the stolen nature of the firearm
Mood possessed at the time of the offense. We find any error was
harmless because it did not cause Mood to be sentenced above the
mandatory minimum sentence imposed under 18 U.S.C. § 924(e)(1).
See United States v. Robinson, 404 F.3d 850, 862 (4th Cir. 2005)
(“Booker did nothing to alter the rule that judges cannot depart
below a statutorily provided minimum sentence.”).
Mood also challenges the continued validity of
Almendarez-Torres v. United States, 523 U.S. 224, 244 (1998), in
light of the Supreme Court’s decisions in Apprendi, and its
progeny. The argument is foreclosed by Circuit precedent. See
United States v. Cheek, 415 F.3d 349 (4th Cir. 2005); United States
v. Sterling, 283 F.3d 216, 220 (4th Cir. 2002).
Accordingly, we affirm the district court’s judgment. We
dispense with oral argument because the facts and legal contentions
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are adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED
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