United States v. Charles , 195 F. App'x 133 ( 2006 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4784
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ROGER DALE CHARLES, II,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Bryson City. Lacy H. Thornburg,
District Judge. (CR-04-27)
Submitted: July 28, 2006 Decided: August 22, 2006
Before WILKINS, Chief Judge, and WIDENER and DUNCAN, Circuit
Judges.
Affirmed by unpublished per curiam opinion.
Charles Wyatt McKeller, Brevard, North Carolina, for Appellant.
Gretchen C. F. Shappert, United States Attorney, Charlotte, North
Carolina; Amy E. Ray, Assistant United States Attorney, OFFICE OF
THE UNITED STATES ATTORNEY, Asheville, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Roger Dale Charles, II, appeals his conviction and sentence
for drug and firearm offenses. We affirm.
I.
A jury convicted Charles of possessing more than 50 grams of
cocaine base with the intent to distribute, see 21 U.S.C.A.
§ 841(a)(1), (b)(1)(A) (West 1999 & Supp. 2006) (Count One), and
possessing firearms after having been convicted of a felony, see 18
U.S.C.A. § 922(g)(1) (West 2000) (Count Three). At sentencing, the
district court determined that Charles’ statutory range of
imprisonment for Count One was 20 years to life. See
21 U.S.C.A. § 841(b)(1)(A). Based on Charles’ prior Florida
convictions for battery on a law enforcement officer, armed
burglary with a deadly weapon, and escaping and resisting an
officer with violence, the court concluded that the statutory range
for Count Three was 15 years to life. See 18 U.S.C.A. § 924(e)(1)
(West Supp. 2006). Grouping the two offenses together and
determining that Charles qualified as a career offender, see United
States Sentencing Guidelines Manual § 4B1.1 (2004), the district
court calculated a resulting offense level of 37, which, when
combined with a criminal history category of VI, yielded an
advisory guideline range of 360 months to life imprisonment. After
considering this range and the other factors set forth in 18
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U.S.C.A. § 3553(a) (West 2000 & Supp. 2006), the district court
concluded that the advisory guideline range “provide[d] an
appropriate window in which the Court should enter sentence.” J.A.
339. The district court sentenced Charles to concurrent terms of
360 months imprisonment on Counts One and Three.
II.
Charles first argues that the district court violated his
Sixth Amendment rights by finding facts about his prior convictions
and using those facts to sentence him as a career criminal. We
find no reversible error.
Since Charles failed to raise this objection at sentencing,
our review is for plain error. See Fed. R. Crim. P. 52(b); United
States v. Olano, 507 U.S. 725, 731-32 (1993). To establish plain
error, Charles must show that an error occurred, that the error was
plain, and that the error affected his substantial rights. See
Olano, 507 U.S. at 732. Even if Charles makes this three-part
showing, correction of the error remains within our discretion,
which we “should not exercise ... unless the error ‘seriously
affect[s] the fairness, integrity or public reputation of judicial
proceedings.’” Id. (quoting United States v. Young, 470 U.S. 1, 15
(1985)) (second alteration in original).
Because United States v. Booker, 543 U.S. 220 (2005), rendered
the sentencing guidelines “effectively advisory,” Booker, 543 U.S.
3at 245, the use of the guidelines no longer “implicate[s] the Sixth
Amendment,” id. at 233. Stated another way, with the guidelines no
longer having the force of law, district courts may find facts
determining the proper sentence to impose within the statutory
range set by Congress without violating a defendant’s right to a
jury trial. See id. at 259. Here, the finding by the jury that
Charles possessed more than 50 grams of cocaine base with the
intent to distribute authorized a sentence of up to life
imprisonment for Count One. See 21 U.S.C.A. § 841(b)(1)(A). Thus,
the district court did not infringe upon Charles’ Sixth Amendment
rights by utilizing its own factual findings to select a sentence
within the appropriate statutory range for that count. And, even
assuming that the district court utilized judicially found facts to
impose a sentence beyond the maximum statutorily authorized by the
jury verdict with regard to Count Three, see
18 U.S.C.A. § 924(a)(2) (West 2000) (providing that statutory
maximum for § 922(g) violation is 10 years), that error did not
affect Charles’ substantial rights in light of the fact that his
Count Three sentence was ordered to run concurrently with the Count
One sentence of the same duration. See United States v. Ellis, 326
F.3d 593, 599-600 (4th Cir. 2003) (holding that sentence exceeding
statutory maximum by at least 20 years did not affect substantial
rights because defendant received equal or longer concurrent
sentences on other counts).
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III.
Charles next contends that the district court erred by failing
to instruct the jury that as an element of the Count Three offense,
the Government was required to prove that his civil rights had not
been restored following his prior felony convictions. Again, we
disagree.
Charles argues that because all of his prior convictions were
Florida convictions and he had completed his terms of imprisonment,
he was eligible for restoration of his civil rights. See Fla.
Stat. § 940.05 (2005).* Critically, however, § 940.05 provides for
the discretionary, rather than automatic, restoration of a
defendant’s civil rights. See United States v. Owens, 15 F.3d 995,
997 (11th Cir. 1994) (emphasizing that “Florida courts uniformly
have held that the restoration of civil rights to a prisoner upon
release from state custody is neither automatic nor pro forma, but
is solely within the province of the governor’s discretionary
*
The statute provides:
Any person who has been convicted of a felony may be
entitled to the restoration of all the rights of
citizenship enjoyed by him or her prior to conviction if
the person has:
(1) Received a full pardon from the board of pardons;
(2) Served the maximum term of the sentence imposed upon
him or her; or
(3) Been granted his or her final release by the Parole
Commission.
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function”). We have held, under similar circumstances, that the
fact that the defendant’s civil rights have been restored is an
affirmative defense, and the opposite fact is not an element of a
§ 922 offense. See United States v. Parker, 262 F.3d 415, 422-23
(4th Cir. 2001).
In Parker, a defendant was charged with knowingly providing
ammunition to a convicted felon, see 18 U.S.C.A. § 922(d)(1) (West
2000). For purposes of the decision, we assumed that a Maryland
court that had sentenced the felon had discretionary authority to
retroactively suspend entry of his three-year sentence and place
him on probation, thereby ending his status as a felon for firearm
possession purposes. See Parker, 262 F.3d at 421. Importantly,
though, we noted that in Maryland there is no period after which
restoration of a convicted felon’s civil rights is automatic. See
id. at 423. Relying on “[t]he general principle ... that a
condition once shown to exist is presumed to continue,” we
concluded that the felon’s loss of the right to possess ammunition
was properly presumed to have continued absent evidence to the
contrary and thus that the government did not have to specifically
prove that the felon’s status had not changed when the defendant
provided him with the ammunition. Id. We added that the records
for the felon’s court of conviction were equally available to the
government and the defendant and that we were confident that had
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the felon’s status changed prior to the transfer of the ammunition,
“it would have been brought to our attention.” Id.The same principle requires affirmance here. While Charles’
completion of his terms of imprisonment created the possibility
that his right to possess a firearm would be restored, the
presumption that his condition would continue relieves the
Government of having to prove specifically that his rights were not
restored prior to his firearm possession. Had Charles’ right been
restored prior to that time, he could have asserted that fact as an
affirmative defense.
IV.
For the reasons set forth above, we affirm Charles’ conviction
and 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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