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 2006-10

United States v. Scott , 201 F. App'x 937 ( 2006 )


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  •                                UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-5199
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
WILBUR SCOTT, JR.,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. James C. Fox, Senior
District Judge. (CR-05-21)
Submitted:   August 25, 2006                 Decided:   October 4, 2006
Before NIEMEYER, GREGORY, and SHEDD, 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Affirmed by unpublished per curiam opinion.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.   Frank D. Whitney, United States Attorney, Anne M.
Hayes, Christine Witcover Dean, Assistant United States Attorneys,
Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Wilbur Scott, Jr., pled guilty to being a felon in
possession of a firearm, in violation of
    18 U.S.C. § 922
    (g)(1)
(2000).   Because he had three prior violent felony convictions,
Scott was sentenced, pursuant to the Armed Career Criminal Act,
    18 U.S.C. § 924
    (e) (2000) (“ACCA”), to 180 months’ imprisonment, the
mandatory minimum under that statute.        Scott appeals, arguing that
the district court violated his Sixth Amendment rights under United
States v. Booker,
    543 U.S. 220
     (2005), and Blakely v. Washington,
    542 U.S. 296
     (2004), by designating him an armed career criminal
and sentencing him pursuant to the ACCA.            Because Scott did not
raise a constitutional challenge below, we review under the plain
error standard of Fed. R. Crim. P. 52(b).             See United States v.
White,
    405 F.3d 208
    , 223 (4th Cir. 2005) (discussing difference in
burden of proving that error affected substantial rights under
harmless error standard in Rule 52(a) and plain error standard in
Rule 52(b)).
Scott advances two theories to support his position.
Scott first asserts that the indictment was insufficient because it
did not list the specific predicate felony convictions used to
support   his   enhanced    punishment.      This    argument     fails   under
controlling circuit precedent.         In United States v. Thompson,
    421 F.3d 278
    , 284 n.4 (4th Cir. 2005), this court ruled that the
indictment    need   not   reference   or   list    the   prior   convictions
- 2 -
underlying the enhancement.    See also United States v. Cheek,
    415 F.3d 349
    , 352-54 (4th Cir.), cert. denied,
    126 S. Ct. 640
     (2005).
Scott next argues that the factual findings a court must
make to determine whether a prior conviction counts towards armed
career criminal status involve more than the mere fact of a prior
conviction, and therefore are subject to the requirements of Booker
and Blakely.
Though many defendants have argued, as Scott does here,
that the prior conviction exception set forth in Almendarez-Torres
v. United States,
    523 U.S. 224
     (1998), may no longer be good law,
see United States v. Shepard,
    544 U.S. 13
    , 26-28 (2005) (Thomas,
J., concurring), Booker clearly maintained the prior conviction
exception.     See Booker, 543 U.S. at 244 (“Any fact (other than a
prior conviction) which is necessary to support a sentence . . .
must be proved to a jury. . . .”).      In Shepard, the Supreme Court
held that Sixth Amendment protections apply only to disputed facts
about a prior conviction that are not evident from “the conclusive
significance of a prior judicial record . . . .”
    544 U.S. at 25
    .
Moreover, as we concluded in Thompson, decided post-Shepard, a
determination that a defendant is eligible for sentencing under the
ACCA may be based on a judge’s determination that the predicate
convictions are for violent felonies or drug trafficking crimes if
the qualifying facts are inherent in the predicate convictions and
the court is not required to perform additional fact finding.     421
- 3 -
F.3d at 283; see also Cheek,
    415 F.3d at 354
     (holding that, under
the Sixth Amendment, the fact of a prior conviction need not be
submitted to the jury or admitted by the defendant for it to serve
as the basis for a sentence enhancement).
Faced with this controlling authority, Scott acknowledges
that Thompson runs contrary to his position, but invites this court
to reconsider Thompson.   We decline Scott’s invitation and affirm
his 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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