United States v. Essick

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4042
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ROGER DALE ESSICK, JR.,
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-03-417)
Submitted: June 10, 2005 Decided: July 12, 2005
Before WILKINSON, LUTTIG, and MICHAEL, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Louis C. Allen, III, Federal Public Defender, William C. Ingram,
First Assistant Federal Public Defender, Greensboro, North
Carolina, for Appellant. Angela Hewlett Miller, OFFICE OF THE
UNITED STATES ATTORNEY, Greensboro, North Carolina; Robert Albert
Jamison Lang, OFFICE OF THE UNITED STATES ATTORNEY, Winston-Salem,
North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Roger Dale Essick, Jr., appeals his forty-month sentence
imposed following his guilty plea to possession of a firearm by a
convicted felon, in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2)
(2000). On appeal, he argues that the district court’s calculation
of his criminal history category violated his Sixth Amendment right
to a jury trial under Blakely v. Washington, 124 S. Ct. 2531(2004), and that the district court erred in treating the
sentencing guidelines as mandatory. For the reasons set forth
below, we affirm.
Essick argues that Blakely brings into question the
viability of Almendarez-Torres v. United States, 523 U.S. 224(1998) (holding that prior convictions are merely sentencing
enhancements, rather than elements of the offense). He contends
that the district court erred by placing him in criminal history
category IV when the indictment did not charge that he had been
convicted of prior crimes, and the court thus violated his right to
have facts that increase the maximum sentence be charged in an
indictment, submitted to a jury, and proved beyond a reasonable
doubt.
In Almendarez-Torres, the Supreme Court held that the
government need not allege in its indictment or prove beyond
reasonable doubt that a defendant had prior convictions for a
district court to use those convictions for purposes of enhancing
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a sentence. 523 U.S. at 233-35. In Apprendi v. New Jersey, 530
U.S. 466, 490 (2005), the Supreme Court held “[o]ther than the fact
of a prior conviction, any fact that increases the penalty for a
crime beyond the prescribed statutory minimum must be submitted to
a jury, and proved beyond a reasonable doubt.” Apprendi did not
overrule Almendarez-Torres, and the Court recently reaffirmed its
holding in Apprendi. See United States v. Booker, 125 S. Ct. 738,
756 (2005). We therefore conclude that the district court properly
considered Essick’s prior sentences in calculating his criminal
history category.
Essick also contends that the district court erred in
treating the sentencing guidelines as mandatory in determining his
sentence. Because he did not raise an objection to the application
of the guidelines as mandatory before the district court, this
court reviews for plain error. See Fed. R. Crim. P. 52(b); United
States v. Olano, 507 U.S. 725, 731-32 (1993).
In United States v. White, 405 F.3d 208 (4th Cir. 2005),
we held that treating the guidelines as mandatory was error and
that the error was plain. Id. at 216-17. We noted, however, that
in order for a defendant to show that the error affected his
substantial rights, he must “demonstrate, based on the record, that
the treatment of the guidelines as mandatory caused the district
court to impose a longer sentence than it otherwise would have
imposed.” Id. at 224. We have reviewed the record and find no
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nonspeculative basis on which to conclude that the district court
would have sentenced Essick to a lesser sentence had it proceeded
under an advisory guideline regime. Thus, we find that Essick has
failed to demonstrate that the plain error in sentencing him under
a mandatory guidelines scheme affected his substantial rights.
Accordingly, we affirm the sentence imposed by the
district court. 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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