United States v. Salley

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.
 No. 00-4924
LEROY SALLEY, a/k/a Reginald
Donnell Salley,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of North Carolina, at Wilmington.
James C. Fox, Senior District Judge.
(CR-00-83-FO)
Submitted: August 20, 2001
Decided: September 6, 2001
Before NIEMEYER and MICHAEL, Circuit Judges, and
HAMILTON, Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
COUNSEL
Thomas P. McNamara, Federal Public Defender, G. Alan DuBois,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant. John S. Bruce, United States Attorney, Anne M. Hayes,
Assistant United States Attorney, Raleigh, North Carolina, for Appel-
lee.
2 UNITED STATES v. SALLEY
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Leroy Salley pled guilty to a criminal information charging him
with conspiracy to distribute and possess with intent to distribute
more than 100 grams of heroin and an unspecified quantity of
cocaine, in violation of 21 U.S.C.A. §§ 841(a)(1), 846 (West 1999 &
Supp. 2001); and possession of a firearm after having been convicted
of a felony, in violation of 18 U.S.C.A. § 922(g) (West 2000). The
district court determined that Salley was an armed career criminal,
pursuant to 18 U.S.C.A. § 924(e) (West 2000), and sentenced him to
concurrent 160 month terms of imprisonment on each count. Salley
now appeals his drug conviction and his sentence as an armed career
criminal.
Salley first argues that § 841 is unconstitutional under the Supreme
Court’s decision in Apprendi v. New Jersey, 530 U.S. 466 (2000). The
arguments advanced by Salley were recently rejected by the Tenth
Circuit. See United States v. Cernobyl, 2001 WL 733406 at *2-3 (10th
Cir. June 29, 2001). Other circuits have similarly dismissed appeals
seeking to find § 841 unconstitutional under Apprendi. United States
v. Martinez, 253 F.3d 251, 256 n.6 (6th Cir. 2001); United States v.
Fort, 248 F.3d 475,482-83 (5th Cir. 2001); United States v. Brough,
243 F.3d 1078, 1080 (7th Cir. 2001) petition for cert. filed, 70
U.S.L.W. 3076 (U.S. Jul. 17, 2001) (No. 01-89) (holding "that there
is no constitutional defect in the design of § 841, and . . . no impedi-
ment to convictions under the statute as written"). We agree and con-
clude that Salley’s arguments are without merit.
We also conclude that Apprendi does not apply to Salley’s
enhanced sentence under § 924(e) because it is based on his prior con-
victions, a factor that was specifically excluded from the holding of
Apprendi. 120 S. Ct. at 2362-63. Contrary to Salley’s assertions,
Apprendi expressly upheld the holding of Almendarez-Torres v.
UNITED STATES v. SALLEY 3
United States, 523 U.S. 224, 235 (1998), that prior felony convictions
are merely sentencing enhancements, rather than elements of the
offense. Apprendi, 120 S. Ct. at 2362; see also United States v. Skid-
more, 254 F.3d 635 (7th Cir. 2001) (holding that Apprendi does not
affect enhanced sentence under § 924(e)); United States v. Dorris,
236 F.3d 582, 586-88 (10th Cir. 2000) (same), cert. denied, 121 S. Ct.
1635 (2001); United States v. Mack, 229 F.3d 226, 235 n.12 (3d Cir.
2000) (same), cert. denied, 121 S. Ct. 2015 (2001).
We therefore affirm Salley’s convictions and sentence. We dis-
pense 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