United States v. Brown , 289 F. App'x 577 ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-5071
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ANTHONY BROWN,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. William M. Nickerson, Senior District
Judge. (1:07-cr-00032-WMN-1)
Submitted: May 29, 2008 Decided: July 15, 2008
Before MICHAEL, TRAXLER, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
James Wyda, Federal Public Defender, Martin G. Bahl, Staff
Attorney, Baltimore, Maryland, for Appellant. Rod J. Rosenstein,
United States Attorney, Michael C. Hanlon, Assistant United States
Attorney, Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Anthony Brown appeals the sentence imposed after he
pleaded guilty to bank robbery with a dangerous weapon, in
violation of 18 U.S.C. § 2113(a), (d) (2000). The Presentence
Report (PSR) recommended sentencing Brown as a career offender
under U.S. Sentencing Guidelines Manual § 4B1.1 (2006). The
recommendation was based in part on one conviction for a crime of
violence, a 2000 Maryland conviction for armed robbery. On appeal,
Brown asserts that the Government’s documents were insufficient to
prove the conviction and therefore the court erred in applying the
career offender enhancement.* Finding no error, we affirm.
Section 4B1.1 of the Sentencing Guidelines directs that
career offenders be sentenced at enhanced offense levels and at
criminal history category VI. A career offender is defined as any
defendant who (1) is at least 18 years old, (2) is convicted of a
felony that is either a crime of violence or controlled substance
offense, and (3) has at least “two prior felony convictions of
either a crime of violence or a controlled substance offense.”
USSG § 4B1.1. A crime of violence is defined to include any
federal or state offense punishable by imprisonment for a term
*
Brown also raises the issue of whether the district court
should have made all sentencing enhancement determinations based on
facts proven beyond a reasonable doubt. However, Brown recognizes
that this court has held otherwise. Brown merely requests that his
challenge be noted. As Brown recognizes, this challenge to his
sentence is without merit.
- 2 -
exceeding one year that “has as an element the use, attempted use,
or threatened use of physical force against the person of another,
or . . . involves conduct that presents a serious potential risk of
physical injury to another.” USSG § 4B1.2(a).
The Supreme Court has held that a federal sentencing
court cannot consider items from the record of a prior conviction
that were not conclusively validated in the earlier proceeding.
Shepard v. United States, 544 U.S. 13, 21, 23 (2005); Taylor v.
United States, 495 U.S. 575 (1990); see United States v. Collins,
412 F.3d 515, 521 (4th Cir. 2005). Brown relies on Taylor and
Shepard in asserting that the records are insufficient to support
application of the career offender status. In cases where the
prior conviction was the result of a plea agreement, the Shepard
court held that a sentencing court may not “look beyond the
charging document, the terms of a plea agreement, the plea
colloquy, the statutory definition, or any explicit finding of the
trial judge to which the defendant assented.” Collins, 412 F.3d at
521; see United States v. Washington, 404 F.3d 834, 842 (4th Cir.
2005) (sentencing court’s reliance on documents other than those
authorized in Shepard resulted in unconstitutional fact-finding).
Brown relies on Taylor and Shepard to support his contention that
the documents were not sufficient to prove his prior conviction for
a crime of violence.
- 3 -
However, the Government correctly distinguishes the
holdings in Taylor and Shepard from the case here. Those cases
dealt with whether the conviction contested was a crime of
violence. Here, Brown concedes that if the Government’s proof is
sufficient to prove that the 2000 robbery with a deadly weapon
conviction exists, there is no fact finding necessary to determine
that it is a qualifying predicate offense. We agree with the
courts that have recognized that the limitations imposed by Shepard
and Taylor do not apply when the government merely seeks to prove
the “fact of a prior conviction” rather than, as in Shepard and
Taylor, the “facts underlying a conviction.” E.g., United States
v. Zuniga-Chavez, 464 F.3d 1199, 1204 (10th Cir. 2006).
Brown argues that the documents are clerical and did not
serve a sufficiently important function to warrant reliance upon by
the court. However, the commitment record demonstrates sufficient
indicia of reliability. It contains the information that Brown
pleaded guilty to robbery with a deadly weapon under the applicable
statutory cite and was used to authorize the Maryland Department of
Corrections to imprison Brown for a term of eleven years. We
therefore conclude that the documents were sufficiently reliable
for the district court to rely on in applying the career offender
enhancement.
We therefore affirm the sentence. We dispense with oral
argument because the facts and legal contentions are adequately
- 4 -
presented in the materials before the court and argument would not
aid the decisional process.
AFFIRMED
- 5 -