United States v. Thompson

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4465
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
KENYA JERMAINE THOMPSON,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Columbia. Matthew J. Perry, Jr., Senior
District Judge. (CR-03-166)
Submitted: November 30, 2005 Decided: March 17, 2006
Before WILKINSON, TRAXLER, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Nathaniel Roberson, Columbia, South Carolina, for Appellant.
Stacey Denise Haynes, OFFICE OF THE UNITED STATES ATTORNEY,
Columbia, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Kenya Jermaine Thompson pled guilty to being a convicted
felon in possession of a firearm, in violation of 18 U.S.C.
§ 922(g)(1) (2000), and possession with intent to distribute
cocaine base, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(B)
(2000). On appeal, Thompson’s counsel filed a brief in accordance
with Anders v. California, 386 U.S. 738 (1967), asserting as
potential issues that the district court erred in finding that
Thompson is an armed career criminal and by enhancing his offense
level based on possession of a firearm or ammunition in connection
with another felony and possession of a dangerous weapon during
commission of the offense, citing Blakely v. Washington, 542 U.S.
296 (2004), and Booker v. United States, 125 S. Ct. 738 (2005), but
stating he found no meritorious claims for appeal. Thompson was
notified of his right to file a pro se supplemental brief, but he
has not done so. The Government elected not to file a brief.
In considering whether the district court properly
designated Thompson as an armed career criminal, this court reviews
the district court’s legal determinations de novo and its factual
findings for clear error. United States v. Wardrick, 350 F.3d 446,
451 (4th Cir. 2003), cert. denied, 541 U.S. 966 (2004).
In Booker, 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
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by a preponderance of the evidence violated the Sixth Amendment.
125 S. Ct. at 746, 750. The Court remedied the constitutional
violation by severing two statutory provisions, 18 U.S.C.A.
§§ 3553(b)(1), 3742(e) (West 2000 & Supp. 2005), thereby making the
guidelines advisory. United States v. Hughes, 401 F.3d 540, 546
(4th Cir. 2005).
After Booker, courts must calculate the appropriate
guideline range, consider the range in conjunction with other
relevant factors under the guidelines and 18 U.S.C.A. § 3553(a)
(West 2000 & Supp. 2005), and impose a sentence. If a court
imposes a sentence outside the guideline range, the district court
must state its reasons for doing so. Id.Thompson’s argument on appeal that the district court
erred under Booker in sentencing him as an armed career criminal is
foreclosed by our recent decision in United States v. Thompson, 421
F.3d 278 (4th Cir. 2005), in which we held that sentencing courts
may rely on prior convictions to invoke the enhancement provided by
§ 924(e)(1), even if the prior convictions were not charged in the
indictment or found by a jury, so long as no facts extraneous to
the fact of conviction need be decided. Id. at 282-83. We further
found that whether the three requisite prior convictions were
committed on separate occasions, as the statute requires, was a
fact inherent in the prior convictions, rather than extraneous to
them, and could be determined by a judge based on appropriate
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judicial sources. Id. at 285-86. Thompson does not dispute the
fact of the prior convictions. We find his argument that the prior
convictions are related to be without merit because the crimes
occurred on different dates, which allowed Thompson the opportunity
to “make a conscious and knowing decision” to engage in subsequent
criminal acts. See United States v. Letterlough, 63 F.3d 332, 337
(4th Cir. 1995). Moreover, Thompson’s receipt of concurrent
sentences for the prior offenses does not alone render the offenses
related. See United States v. Allen, 50 F.3d 294, 297 (4th Cir.
1995). We therefore conclude that no constitutional error occurred
in applying the armed career criminal statute in this case.
Thompson also challenges the district court’s imposition
of sentence enhancements based on his possession of a firearm or
ammunition in connection with another felony and possession of a
dangerous weapon during commission of the offense. We find any
error was harmless because it did not cause Thompson to be
sentenced above the mandatory minimum sentence imposed under 18
U.S.C. § 924(e)(1). See United States v. Robinson, 404 F.3d 850,
862 (4th Cir. 2005) (“Booker did nothing to alter the rule that
judges cannot depart below a statutorily provided minimum
sentence.”).
Finding no error, we deny Thompson’s motion to remand and
affirm the judgment of the district court. This court requires
that counsel inform his client, in writing, of his right to
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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 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
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