United States v. Brandon

Rehearing granted, January 23, 2007
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4831
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
SANDAKO MESHAWN BRANDON,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. James A. Beaty, Jr.,
District Judge. (CR-02-193)
Submitted: October 21, 2005 Decided: November 21, 2005
Before WILKINSON, LUTTIG, and TRAXLER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Christopher R. Clifton, GRACE, HOLTON, TISDALE & CLIFTON, P.A.,
Winston-Salem, North Carolina, for Appellant. Anna Mills Wagoner,
United States Attorney, Sandra J. Hairston, L. Patrick Auld,
Assistant United States Attorneys, Greensboro, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Sandako Meshawn Brandon appeals his 360-month sentence
imposed following remand from this court for one count of
conspiracy to distribute cocaine base, in violation of 21 U.S.C.
§ 846 (2000), and one count of distributing cocaine base, in
violation of 21 U.S.C. § 841(a) (2000).* We affirm.
Brandon first contends that the district court’s finding
that he qualified as a career offender was impermissibly based upon
facts not alleged in the indictment or admitted to, in violation of
his Sixth Amendment rights. Because Brandon preserved this issue
by objecting under Blakely v. Washington, 542 U.S. 296 (2004), to
being sentenced as a career offender, review is de novo. See
United States v. Mackins, 315 F.3d 399, 405 (4th Cir. 2003)
(reviewing Apprendi claim).
In United States v. Booker, 125 S. Ct. 738, 756 (2005),
the Supreme Court held that the mandatory manner in which the
federal sentencing guidelines required courts to impose sentencing
enhancements based on facts found by the court by a preponderance
of the evidence violated the Sixth Amendment. The Court remedied
the constitutional violation by severing two statutory provisions,
18 U.S.C.A. § 3553(b)(1) (West Supp. 2005) (requiring sentencing
courts to impose a sentence within the applicable guideline range),
and 18 U.S.C.A. § 3742(e) (West 2000 & Supp. 2005) (setting forth
*
See United States v. Brandon, 363 F.3d 341 (4th Cir. 2004).
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appellate standards of review for guideline issues), thereby making
the guidelines advisory. Booker, 125 S. Ct. at 756-67.
Nevertheless, the Supreme Court reaffirmed its prior
holding in Apprendi that “[a]ny fact (other than a prior
conviction) which is necessary to support a sentence exceeding the
maximum authorized by the facts established by a plea of guilty or
a jury verdict must be admitted by the defendant or proved to a
jury beyond a reasonable doubt.” Booker, 125 S. Ct. at 756. This
court has held that the application of the career offender
enhancement falls within the exception for prior convictions where
the facts are undisputed, making it unnecessary for the district
court to engage in further fact finding about a prior conviction.
See United States v. Collins, 412 F.3d 515, 521-23 (4th Cir. 2005);
see also Shepard v. United States, 125 S. Ct. 1254 (2005) (holding
that a court’s inquiry as to disputed facts in connection with a
prior conviction is limited to the terms of the charging document,
a plea agreement, a transcript of the plea colloquy, or a
comparable judicial record). Accordingly, Brandon’s claim must
fail.
Moreover, we reject Brandon’s contention that under
Booker, the district court violated his Sixth Amendment rights by
making impermissible factual findings in determining his criminal
history category. In Shepard, the Supreme Court recognized that
the prior conviction exception survived Booker, but held the Sixth
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Amendment protections apply to “a disputed fact . . . about a prior
conviction.” Shepard, 125 S. Ct. at 1262. However, instead of
challenging the accuracy or the “fact” of his prior convictions,
Brandon asserts that the increase required more than just judicial
notice of the “fact” of the prior convictions because the district
court had to consider the type of conviction and whether it
qualified as a violent felony, the length and type of sentence
imposed, and recency of the prior convictions in relation to the
instant offense. We find however, that the district court only had
to take judicial notice that Brandon had been convicted and when
the conviction occurred, both facts that are a matter of public
record and require no interpretation.
Accordingly, we hold that the district court’s
recognition of the existence of Brandon’s prior convictions and
assessment of the timing of those convictions was not in violation
of his Sixth Amendment rights. Id.; United States v. Washington,
404 F.3d 834 (4th Cir. 2005). We therefore affirm Brandon’s
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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