United States v. White , 209 F. App'x 293 ( 2006 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4698
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ROMI RAHEMM WHITE,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. Frank W. Bullock, Jr.,
District Judge. (CR-04-93)
Submitted: August 31, 2006 Decided: December 11, 2006
Before WILKINSON, MICHAEL, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Thomas N. Cochran, Assistant Federal Public Defender, Greensboro,
North Carolina, for Appellant. Anna Mills Wagoner, United States
Attorney, Harry L. Hobgood, Assistant United States Attorney,
Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Romi Rahemm White appeals his sentence imposed after he
pled guilty to possession of $9,740 in counterfeit currency, in
violation of 18 U.S.C. § 472 (2000). He challenges his sentence
alleging that the district court violated the Sixth Amendment in
calculating his criminal history points and in sentencing him under
the mandatory sentencing guidelines scheme. We affirm.
In United States v. Booker, 543 U.S. 220 (2005), 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. Id. at 233-34. “To
establish that a Sixth Amendment error occurred in his sentencing,
[a defendant] must show that the district court imposed a sentence
exceeding the maximum allowed based only on the facts that he
admitted.” United States v. Evans, 416 F.3d 298, 300 (4th Cir.
2005).
White argues that the district court violated the Sixth
Amendment in calculating his criminal history points. White does
not contest any of the facts of the prior convictions used to
calculate his score. Because he alleges factual determinations are
essential to the calculation of his criminal history category, he
claims his guideline range should be calculated using the lowest
criminal history category of I.
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White’s challenge to his criminal history calculation
under Booker is unavailing. In Shepard v. United States, 544 U.S.
13 (2005), the Supreme Court instructed that Sixth Amendment
protections apply to disputed facts about a prior conviction that
are not evident from “the conclusive significance of a prior
judicial record.” Id. at 26-28. Here, White does not contest any
facts about his prior convictions used to arrive at his criminal
history score. Indeed, the district court was not called upon to
consider any facts regarding the convictions. Thus, the court’s
determination as to the criminal history category did not violate
the Sixth Amendment. See United States v. Collins, 412 F.3d 515,
521-23 (4th Cir. 2005) (finding no Sixth Amendment violation when
nature and separateness of predicate offenses for career offender
status were undisputed); cf. United States v. Washington, 404 F.3d
834, 843 (4th Cir. 2005) (finding that district court’s reliance on
disputed facts about prior conviction to determine that it was
crime of violence violated Sixth Amendment). Because White’s
guideline calculation was based on facts admitted by him and not on
judicial fact-finding, his sentence did not violate the Sixth
Amendment.
White also makes a summary challenge to his sentence
based on the court’s mandatory application of the sentencing
guidelines. Although there is no Sixth Amendment error in this
case, White was sentenced under a mandatory sentencing guidelines
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scheme. In Booker, the Supreme Court concluded that, even in the
absence of a Sixth Amendment violation, the imposition of a
sentence under the mandatory guidelines scheme was error. Booker,
543 U.S. at 267-68. This court explained that sentencing under a
mandatory scheme is “a separate class of error . . . distinct from
the Sixth Amendment claim that gave rise to the decision in Booker,
and it is non-constitutional in nature.” United States v. Hughes,
401 F.3d 540, 553 (4th Cir. 2005). The court recognized that
“[t]his error may be asserted even by defendants whose sentences do
not violate the Sixth Amendment.” Id. (footnote omitted).
Because White raised a timely Blakely v. Washington, 542
U.S. 296 (2004), objection at sentencing, he has preserved his
claim of statutory Booker error. United States v. Rodriguez, 433
F.3d 411, 415-16 (4th Cir. 2006). Thus, this court reviews White’s
claim for harmless error, which places “the burden . . . on the
Government to show that such an error did not affect the
defendant’s substantial rights.” Id. at 416. “The Government can
make such a showing if the sentencing court indicated that it would
not have imposed a lesser sentence under an advisory (rather than
a mandatory) Guidelines regime.” United States v. Sullivan,
455 F.3d 248, 266 (4th Cir. 2006) (citing Rodriguez, 433 F.3d at
416) (King, J., concurring).
Here, there is no indication that the district court
would have imposed a lower sentence had the sentencing guidelines
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been advisory. We conclude, based on the court’s statements at
sentencing, that imposition of White’s sentence under the mandatory
guidelines scheme was harmless error. See Sullivan, 455 F.3d at
266.
We therefore affirm White’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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