United States v. Jenkins

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4466
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
MICHAEL A. JENKINS,
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-02-105)
Submitted: November 21, 2005 Decided: December 19, 2005
Before WILLIAMS and KING, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon,
Assistant Federal Public Defender, Windy C. Venable, Research and
Writing Attorney, Raleigh, North Carolina, for Appellant. Thomas
R. Ascik, Assistant United States Attorney, Asheville, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Michael Anthony Jenkins pled guilty to conspiracy to
possess with intent to distribute at least fifty grams of cocaine
base, 21 U.S.C. §§ 841, 846 (2000), and possessing and brandishing
a firearm during and in relation to a drug trafficking crime, 18
U.S.C. § 924(c)(1) (2000). The district court sentenced Jenkins to
292 months of imprisonment. Jenkins’ counsel has filed a brief
pursuant to Anders v. California, 386 U.S. 738 (1967), stating that
there are no meritorious grounds for appeal, but asserting that
Jenkins was sentenced in violation of United States v. Booker, 125
S. Ct. 738 (2005). Jenkins has filed a pro se supplemental brief.
Finding no reversible error, we affirm.
Jenkins challenges his sentence as a career offender, see
U.S. Sentencing Guidelines Manual § 4B1.1 (2002), under Booker.
Specifically, he argues that his sentence was improperly enhanced
based on prior convictions. Because Jenkins did not object below,
this claim is reviewed for plain error. United States v. Hughes,
401 F.3d 540, 547 (4th Cir. 2005). This court has held that, where
the facts are undisputed, the application of the career offender
enhancement falls within the exception for prior convictions.
United States v. Collins, 412 F.3d 515, 521-23 (4th Cir. 2005);
accord United States v. Guevara, 408 F.3d 252, 261 (5th Cir. 2005)
(“Career offender status is not ‘a sentencing judge’s determination
of a fact other than a prior conviction.’ . . . Booker explicitly
- 2 -
excepts from Sixth Amendment analysis the third component of the
crime of violence determination, the fact of two prior
convictions.”); see also United States v. Harp, 406 F.3d 242, 247
(4th Cir.) (finding no plain error in the district court’s
designation of Harp as a career offender), cert. denied, 126 S. Ct.
297 (2005). Accordingly, we find that the district court did not
err in designating Jenkins as a career offender and that Jenkins’
sentence does not violate the Sixth Amendment in this regard. To
the extent Jenkins alleges that the district court committed error
under Booker by sentencing him under a mandatory application of the
guidelines, Jenkins has failed to demonstrate that the plain error
in sentencing him under a mandatory guideline scheme affected his
substantial rights. See United States v. White, 405 F.3d 208, 223
(4th Cir.), cert. denied, 74 U.S.L.W. 3302 (U.S. Nov. 14, 2005)(No.
05-6981).
In accordance with Anders, we have reviewed the entire
record in this case and have found no meritorious issues for
appeal. We have also reviewed the pro se issues raised by Jenkins
and conclude they are without merit. We therefore affirm Jenkins’
conviction and sentence. This court requires that counsel inform
his client, in writing, of his right to petition the Supreme Court
of the United States for further review. If the client requests
that a petition be filed, but counsel believes that such a petition
would be frivolous, then counsel may move in this court for leave
- 3 -
to withdraw from representation. Counsel’s motion must state that
a copy thereof was served on the client. 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
- 4 -