United States v. Smith

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4448
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
FRANKLIN SMITH, JR.,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at New Bern. Louise W. Flanagan,
District Judge. (CR-03-65-FL)
Submitted: January 11, 2006 Decided: February 8, 2006
Before TRAXLER, KING, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon,
Assistant Federal Public Defender, Jane E. Pearce, Research and
Writing Specialist, 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Unpublished opinions are not binding precedent in this circuit.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:
Franklin Smith, Jr., pled guilty to being a felon in
possession of a weapon in violation of 18 U.S.C. § 922(g)(1) (2000)
and was given a fifteen-year minimum sentence because he was found
to be an armed career criminal under 18 U.S.C.A. § 924(e)(1) (West
Supp. 2005). On appeal, Smith argues that the district court erred
by sentencing him as an armed career criminal in violation of
Blakely v. Washington, 542 U.S. 296 (2004), because this
judicially-imposed sentencing enhancement was neither found by a
jury nor admitted by him. Since Smith’s appeal, the Supreme Court
has extended the rule of Blakely to the Federal Sentencing
Guidelines. See United States v. Booker, 543 U.S. 220, 125 S. Ct.
738 (2005). For the reasons that follow, we affirm.
Smith’s argument is foreclosed by two of our recent
decisions. See United States v. Thompson, 421 F.3d 278, 282-84
(4th Cir.) (holding that district court may enhance sentence based
on fact of prior convictions under § 924(e) regardless of whether
admitted by defendant or found by jury), petition for cert. filed
(Oct. 25, 2005) (No. 05-7266); United States v. Cheek, 415 F.3d
349, 352-53 (4th Cir.) (holding that the armed career criminal
designation, based on prior convictions, does not violate the Sixth
Amendment under Booker), cert. denied, 126 S. Ct. 640 (2005).
Accordingly, we affirm Smith’s sentence. We dispense
with oral argument as the facts and legal contentions are
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adequately presented in the materials before the court and argument
would not aid the decisional process.
AFFIRMED
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