United States v. Jones ( 2006 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4018
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ALVIS REZA JONES,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. N. Carlton Tilley, Jr.,
Chief District Judge. (CR-04-245)
Submitted: October 26, 2005 Decided: June 30, 2006
Before WILLIAMS, KING, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Louis C. Allen, III, Federal Public Defender, William C. Ingram,
First Assistant Federal Public Defender, Greensboro, North
Carolina, for Appellant. Anna Mills Wagoner, United States
Attorney, Lisa B. Boggs, Assistant United States Attorney,
Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Alvis Reza Jones appealed his 127-month sentence, which
was imposed following his guilty plea to possession with intent to
distribute 10.3 grams of crack in violation of 21 U.S.C.
§ 841(a)(1), (b)(1)(B). The sentencing court stated that it would
impose the same 127-month sentence in its “unfettered discretion.”
Jones asserts on appeal that his sentence was improperly increased
based upon a prior conviction that was not contained in the
indictment to which he pled guilty and that his sentence was
improperly increased based upon drug quantities not alleged in the
indictment or found by a jury. We affirm.1
Jones asserts that the sentencing court violated the
Sixth Amendment under Blakely v. Washington, 542 U.S. 296 (2004),
and its progeny when it increased his sentencing range from five to
forty years to ten years to life pursuant to 21 U.S.C.
§ 841(b)(1)(B) based upon a prior “felony drug offense” not alleged
in his indictment or admitted by him. The Government filed an
Information of Prior Conviction pursuant to 21 U.S.C. § 851 stating
Jones was convicted of cocaine trafficking in North Carolina in May
2000 and that the Government therefore sought the increased
penalties of § 841(b)(1)(B). Jones acknowledged the conviction at
1
This appeal was placed in abeyance for United States v.
Shatley, 448 F.3d 264 (4th Cir. 2006).
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his sentencing hearing. Because Jones raised this issue in the
sentencing court, review is de novo.
In Shepard v. United States, 544 U.S. 13, 19-21 (2005),
the Supreme Court held 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.” Unlike
the defendant in Shepard, Jones did not contest any facts about the
prior conviction the court used to enhance his sentence. While he
alleges that the court implicitly made factual findings regarding
the nature of his prior conviction to conclude it was a “felony
drug offense,” he did not contest the court’s factual findings
below or in his appellate brief. Thus, his is a purely legal
argument that, in all cases, a court must make factual findings in
determining the nature of prior convictions for sentencing
purposes. However, this court has rejected this argument based on
Apprendi v. New Jersey, 530 U.S. 466 (2000), and other similar
precedent. See United States v. Cheek, 415 F.3d 349, 354 (4th
Cir.), cert. denied, 126 S. Ct. 640 (2005). Thus, when the facts
about the prior convictions were undisputed, there is no Sixth
Amendment error in utilizing the prior convictions to enhance a
sentence. See id. at 352-53 (finding no Sixth Amendment error in
armed career criminal context); see also United States v. Collins,
412 F.3d 515, 521-23 (4th Cir. 2005) (finding that, when nature of
prior conviction is undisputed, the court makes no factual findings
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in determining that conviction was crime of violence or controlled
substance offense). For these reasons, this claim is meritless.
Jones next asserts he should be resentenced under Blakely
because the district court imposed a sentence that was based on
drug quantities that were neither alleged in his indictment nor
admitted by him. Because the 120-month mandatory minimum sentence
was appropriate, this claim implicates the additional seven months
in prison Jones received above the 120-month minimum. The
Government acknowledges that the district court erred in increasing
Jones’s sentence based upon its own factual finding. The
Government continues, however, that such error was harmless because
the sentencing court also stated that it would impose the same 127-
month sentence in its “unfettered discretion.” (Sealed JA II, 90).
Because this issue was raised at sentencing, this court’s review is
de novo.
We agree with the Government that any Sixth Amendment
error is harmless. The district court made it clear it would
impose the same 127-month sentence if the Sentencing Guidelines
were advisory. The 127-month sentence falls within the statutory
range of 120 months to life under § 841(b)(1)(B). Therefore, the
error is harmless under Fed. R. Crim. P. 52(a) because it did not
affect Jones’s substantial rights. See United States v. Shatley,
448 F.3d 264, 265-67 (4th Cir. 2006). For these reasons, we affirm
Jones’s sentence. We dispense with oral argument because the
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factual and legal issues are adequately presented in the materials
before the court and argument would not aid the decisional process.
AFFIRMED
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