United States v. Walden , 216 F. App'x 352 ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-5128
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
TIMOTHY H. WALDEN,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Richard L. Voorhees,
District Judge. (CR-04-39)
Submitted: January 12, 2007 Decided: February 5, 2007
Before NIEMEYER and GREGORY, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
John C. Hunter, JOHN C. HUNTER LAW FIRM, PLLC, Asheville, North
Carolina, for Appellant. Gretchen C. F. Shappert, United States
Attorney, Charlotte, North Carolina, Amy E. Ray, Assistant United
States Attorney, Asheville, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Timothy H. Walden pled guilty without a plea agreement to
conspiracy to possess with intent to distribute five kilograms or
more of cocaine and fifty grams or more of cocaine base, in
violation of 21 U.S.C. § 846 (2000); and possession with intent to
distribute 500 grams or more of cocaine, in violation of 21 U.S.C.
§ 841 (2000). After finding Walden qualified as a career offender
under U.S. Sentencing Guidelines Manual (“USSG”) § 4B1.1 (2004),
the district court sentenced Walden to 262 months’ imprisonment.
Walden appeals, claiming the district court erred in sentencing him
as a career offender.1 Finding no error, we affirm.
We review “legal questions, including the interpretation
of the guidelines, de novo, while factual findings are reviewed for
clear error.” United States v. Moreland, 437 F.3d 424, 433 (4th
Cir.), cert. denied, 126 S. Ct. 2054 (2006). A defendant is a
career offender if he was at least eighteen years old when the
instant offense was committed, the instant offense is a felony and
is either a crime of violence or a drug offense, and he has at
least two prior felony convictions for crimes of violence or drug
offenses. See USSG § 4B1.1.
Prior to sentencing, Walden filed written objections to
the presentence report, contending two February 2000 state court
convictions for possession with intent to manufacture, sell, or
1
Walden does not challenge his convictions on appeal.
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deliver cocaine were consolidated and should have been counted as
a single conviction for sentencing purposes. At the sentencing
hearing, however, Walden’s counsel acknowledged these were separate
offenses for which Walden received consecutive sentences. Counsel
requested the district court to sentence Walden with a variance
below the sentencing guidelines range, maintaining Walden was not
aware until reading the presentence report that he had been
convicted on separate state court drug charges.2
“[T]he Sixth Amendment (as well as due process) does not
demand that the mere fact of a prior conviction used as a basis for
a sentencing enhancement be pleaded in an indictment and submitted
to a jury for proof beyond a reasonable doubt.” United States v.
Cheek, 415 F.3d 349, 354 (4th Cir.), cert. denied, 126 S. Ct. 640(2005). Sixth Amendment protections apply only to disputed facts
about a prior conviction that are not evident from “the conclusive
significance of a prior judicial record.” Shepard v. United
States, 544 U.S. 13, 25-26 (2005). Walden’s prior record
established, and Walden acknowledged at sentencing, that he had two
convictions for drug offenses. Therefore, the district court’s
conclusion that Walden was a career offender was proper.
2
The district court sentenced Walden at the bottom of the
sentencing guidelines range. On appeal, Walden does not contend,
in the event the guidelines range was properly calculated, that
this sentence was unreasonable.
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Accordingly, we affirm Walden’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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