United States v. Choice , 164 F. App'x 316 ( 2006 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4090
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
EDDIE SWEENEY CHOICE,
Defendant - Appellant.
On Remand from the United States Supreme Court.
(S. Ct. No. 04-6882)
Submitted: November 16, 2005 Decided: January 6, 2006
Before MOTZ, KING, and GREGORY, Circuit Judges.
Opinion reinstated; sentence affirmed by unpublished per curiam
opinion.
Steven M. Hisker, Columbia, South Carolina, for Appellant. Alan
Lance Crick, Assistant United States Attorney, Greenville, South
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
This case is before the court on remand from the Supreme
Court. We previously affirmed Eddie Sweeney Choice’s conviction.
United States v. Choice, No. 04-4090 (4th Cir. July 20, 2004)
(unpublished). The Supreme Court vacated our decision and remanded
Choice’s case to us for further consideration in light of United
States v. Booker, 125 S. Ct. 738 (2005).
Choice’s attorney has filed a brief in accordance with
Anders v. California, 386 U.S. 738 (1967), in which he addresses
whether the district court violated Choice’s Sixth Amendment rights
by enhancing his sentence based on judicial fact-finding. Counsel
concedes, however, that there are no meritorious issues for appeal.
Choice has filed a supplemental pro se brief also challenging his
sentence under Booker.
Choice pled guilty, pursuant to a written plea agreement,
to one count of unlawful possession of a firearm by a convicted
felon, in violation of 18 U.S.C. § 922(g) (2000). At sentencing,
the district court assigned a base offense level of 24, pursuant to
U.S. Sentencing Guidelines Manual § 2K2.1(a)(2), because Choice had
two prior felony convictions for violent crimes. Specifically,
Choice was convicted in 2000, of Pointing and Presenting a Firearm
and in 1999, of Assault of a High and Aggravated Nature, both
felonies under South Carolina law. Choice received a two-level
enhancement because the firearm was reported stolen. See USSG
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§ 2K2.1(b)(4). After a three-level reduction for acceptance of
responsibility, Choice’s adjusted offense level was 23. Choice’s
criminal history category V yielded a guideline range of 84-105
months imprisonment. The district court imposed a sentence at the
bottom of the range.
On appeal, Choice’s attorney filed an Anders brief
addressing whether the district court complied with Fed. R. Crim.
P. 11. This court affirmed Choice’s conviction and sentence. On
January 24, 2005, the Supreme Court granted Choice’s petition for
writ of certiorari, vacated this court’s judgment and remanded to
this court for further consideration in light of United States v.
Booker, 543 U.S. , 125 S. Ct. 738 (2005).
On remand, Choice argues that he is entitled to
resentencing in light of Booker because his sentence was enhanced
based on facts not found by the jury. Specifically, he argues that
his offense level was increased based on judicial fact-finding both
with respect to his prior felony convictions and the enhancement he
received for the stolen weapon. Because Choice did not object on
either ground, this court’s review is only for plain error. United
States v. Evans, 416 F.3d 298, 300 (4th Cir. 2005).
To establish a Sixth Amendment error during sentencing,
a defendant who entered a guilty plea must show that the district
court imposed a sentence exceeding the maximum allowed based only
on the facts to which he admitted. Id. However, we have
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recognized an exception to the general rule in that a district
court may enhance a sentence based on the “fact of a prior
conviction” regardless of whether or not it was admitted to by the
defendant or found by a jury. See United States v. Thompson, 421
F.3d 278, 282, 283-86 (4th Cir. 2005) petition for cert. filed
U.S.L.W. (U.S. Oct. 25, 2005) (No. 05-7266). Such enhancement
will not constitute Sixth Amendment error if the facts necessary to
support the enhancement “inhere in the fact of conviction” rather
than being “extraneous to it.” Id. at 283.
Choice’s arguments regarding the calculation of his base
offense level are foreclosed by Thompson, because the district
court could determine from the judicial record of Choice’s prior
convictions that each qualified as a crime of violence. See
Shepard v. United States, 125 S. Ct. 1254, 1257, 1263 (2005)
(holding that sentencing court cannot look to police reports or
complaint applications to determine whether prior offense is
generic burglary but may “examin[e] the statutory definition,
charging document, written plea agreement, transcript of plea
colloquy, and any explicit factual finding by the trial judge to
which the defendant assented” or “some comparable judicial record
of this information”); United States v. Cheek, 415 F.3d 349 (4th
Cir. 2005) (holding that the armed career criminal designation
based on prior convictions does not violate Booker), cert. denied,
___ U.S.L.W. ___ (U.S. Nov. 7, 2005) (No. 05-6904); United
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States v. Collins, 412 F.3d 515, 521-23 (4th Cir. 2005) (holding
that, when the facts are undisputed, the application of the career
offender enhancement falls within the exception for prior
convictions).
Choice also challenges the two-level enhancement he
received because the firearm was reported stolen. See USSG
§ 2K2.1(b)(4). For purposes of determining Booker error, this
court considers the guideline range based on the facts the
defendant admitted before any adjustment for acceptance of
responsibility. United States v. Evans, 416 F.3d 298, 300 n.4 (4th
Cir. 2005). Using this calculation with criminal history category
V, the guideline range would have been 92-115 months. Because
Choice’s sentence was below that range, he cannot show plain error.
In accordance with Anders, we have thoroughly examined
the entire record for any other potentially meritorious issues and
have found none. Accordingly, we reinstate our July 20, 2004
opinion and affirm Choice’s sentence after our reconsideration in
light of Booker.* This court requires that counsel inform Choice,
in writing, of the right to petition the Supreme Court of the
United States for further review. If Choice requests that a
petition be filed, but counsel believes that such a petition would
*
We note that this court’s original opinion erroneously stated
that Choice was sentenced to 82 months imprisonment. Our review of
the record confirms that the district court actually imposed a
sentence of 84 months.
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be frivolous, then counsel may move in this court for leave to
withdraw from representation. Counsel’s motion must state that a
copy thereof was served on Choice. 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.
OPINION REINSTATED; SENTENCE AFFIRMED
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