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 2005-12

United States v. Means , 158 F. App'x 485 ( 2005 )


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  •                             UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4417
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
KATHERINE MEANS,
Defendant - Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Charleston. Joseph Robert Goodwin,
District Judge. (CR-04-68)
Submitted:   October 19, 2005          Decided:     December 27, 2005
Before LUTTIG, TRAXLER, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
George B. Vieweg, III, BAYLISS & PHALEN, P.L.L.C., Charleston, West
Virginia, for Appellant. Charles T. Miller, Acting United States
Attorney, W. Chad Noel, Assistant United States Attorney,
Charleston, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Katherine Means appeals her 120 month prison sentence
imposed          after   her     conviction    for    conspiracy    to    manufacture
methamphetamine in violation of
    21 U.S.C. § 846
     (2000).*                      Finding
no error, we affirm.
Means contends the district court erred when it allowed
the Government to amend the sentencing information it had filed
without further evidence of her prior convictions.                   We review this
claim de novo.            See United States v. Mackins,
    315 F.3d 399
    , 405
(4th Cir. 2003).            Under
    21 U.S.C. § 851
    (a)(1) (2000), “clerical
mistakes in the information may be amended at any time prior to the
pronouncement of sentence.” In United States v. Campbell,
    980 F.2d 245
    ,       252    (4th    Cir.   1992),   we   held    that   a   defendant    is   not
prejudiced by an amendment to the information when the original
information provides reasonable notice of the government’s intent
to seek a sentence enhancement.                 In this case, Means was given
notice that the Government would seek an enhanced penalty in her
plea agreement.            At sentencing, the district court gave Means an
opportunity to withdraw her guilty plea in light of the amended
information, but she chose not to withdraw her plea.                     Means is also
unable to demonstrate any prejudice that resulted from the amended
information.             The district court did not err in allowing the
Government to amend the sentencing information.
*
Means does not appeal her conviction.
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Means also asserts the district court erred when it
enhanced her sentence using her prior convictions that were not
pled in her indictment nor admitted in her guilty plea.                       In
Almendarez-Torres v. United States,
    523 U.S. 224
    , 233-35 (1998),
the Supreme Court held that the government need not allege in its
indictment and need not prove beyond reasonable doubt that a
defendant had prior convictions for a district court to use those
convictions for purposes of enhancing a sentence.               See also United
States v. Cheek,
    415 F.3d 349
     (4th Cir. 2005) (Almendarez-Torres
was not overruled by Apprendi v. New Jersey,
    530 U.S. 466
     (2000),
or United States v. Booker,
    125 S. Ct. 738
     (2005)).               The district
court   did    not   err   when   it   used    Means’   prior   convictions   to
calculate her sentence.
Accordingly, we affirm the district court’s judgment. 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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