United States v. Alston , 262 F. App'x 542 ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4278
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
SHAWN ANDRE ALSTON,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. James C. Dever III,
District Judge. (5:06-cr-00200-D)
Submitted: October 31, 2007 Decided: January 29, 2008
Before NIEMEYER, MOTZ, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Thomas P. McNamara, Federal Public Defender, G. Alan DuBois,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant. George E. B. Holding, United States Attorney, Anne M.
Hayes, Jennifer P. May-Parker, Assistant United States Attorneys,
Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Shawn Andre Alston pled guilty to possession of a firearm
by a convicted felon, 18 U.S.C. § 922(g)(1) (2000), and was
sentenced to a term of 120 months imprisonment. Alston appeals his
sentence, arguing that the district court erred in applying the
cross reference in U.S. Sentencing Guidelines Manual
§ 2K2.1(c)(1)(A) (2006). He maintains that (1) the cross reference
does not apply to completed crimes; (2) application of the cross
reference in his case violates his Fifth and Sixth Amendment rights
under United States v. Booker, 543 U.S. 220 (2005), and (3)
application of the cross reference in his case constitutes an
unconstitutional delegation of executive and Congressional power.
Although Alston contested the application of the cross reference in
the district court, he did not contest it on the first and last
grounds he raises here. We therefore review these issues for plain
error, United States v. Olano, 507 U.S. 725, 732-37 (1993)
(unpreserved error may be corrected only if error occurred, that
was plain, and that affects substantial rights, and if failure to
correct error would seriously affect the fairness, integrity, or
public reputation of judicial proceedings). We conclude that he
has not identified any reversible error, and affirm.
In the presentence report, the probation officer
recommended that Alston’s offense level be calculated pursuant to
§ 2K2.1(c)(1)(A) cross referenced to USSG § 2X1.1, which increased
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his offense level under USSG § 2D1.1 for possession of a firearm in
connection with drug trafficking. At his sentencing hearing,
Alston objected unsuccessfully to application of the cross
reference and consideration of information provided by the
confidential informant on the grounds that these facts were not
charged in the indictment or proved beyond a reasonable doubt.*
On appeal, Alston first contends that the cross reference
was wrongly applied because the district court found that he had
committed a completed offense (drug trafficking) and, therefore,
§ 2X1.1 could not apply because it addresses conspiracies,
attempts, and solicitations. He relies on dicta in United States
v. Bellamy, 264 F.3d 448 (4th Cir. 2001), which is inapposite. We
conclude the district court did not plainly err in applying
§ 2K2.1(c)(1)(A).
Alston’s contention of Fifth and Sixth Amendment error
under Apprendi and Booker is also unavailing. After Booker, the
sentencing court still must calculate the applicable guideline
range after making the appropriate findings of fact. United States
v. Moreland, 437 F.3d 424, 432 (4th Cir.), cert. denied, 126 S. Ct.
2054 (2006). Alston argues that his case is an exception, but
provides no convincing support for his position. Nor did the court
err by using the preponderance of the evidence standard of proof.
*
In this appeal, Alston does not contest the district court’s
factual finding that he possessed a firearm in connection with drug
trafficking.
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See United States v. Morris, 429 F.3d 65, 72 (4th Cir. 2005)
(holding that, after Booker, judges will continue to make decisions
about sentencing factors by preponderance of evidence without
violating Sixth Amendment), cert. denied, 127 S. Ct. 121 (2006).
Last, Alston maintains that application of the cross
reference in his case unconstitutionally transferred executive and
Congressional powers to the judiciary. This claim is contrary to
the Supreme Court’s holdings in Mistretta v. United States, 488
U.S. 361, 412 (1989), that “in creating the Sentencing Commission
. . . Congress neither delegated excessive legislative power nor
upset the constitutionally mandated balance of powers among the
coordinate Branches.” See also Booker, 543 U.S. at 243 (“Nothing
in our holding today is inconsistent with our decision in
Mistretta.”).
We therefore affirm the sentence imposed by the district
court. 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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