United States v. Jerome Mason , 547 F. App'x 235 ( 2013 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4934
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JEROME MICHALE MASON,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. William L. Osteen,
Jr., Chief District Judge. (1:12-cr-00105-WO-1)
Submitted: November 13, 2013 Decided: November 26, 2013
Before MOTZ, AGEE, and THACKER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Sarah Jessica Farber, FARBER LAW FIRM, PLLC, Raleigh, North
Carolina, for Appellant. Ripley Rand, United States Attorney,
Sandra J. Hairston, Assistant United States Attorney,
Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Jerome Michale Mason appeals the district court’s
judgment sentencing him to 151 months’ imprisonment for
conspiracy to distribute twenty-eight grams or more of cocaine
base, in violation of 21 U.S.C. § 846 (2012). On appeal, Mason
argues that the district court improperly applied advisory
Guidelines enhancements that were not alleged in the indictment.
We affirm.
Mason pleaded guilty, pursuant to a written plea
agreement, in May 2012. In the presentence report (“PSR”), the
probation officer recommended two sentencing enhancements now at
issue in this appeal, a two-level increase for possessing a
dangerous weapon and a two-level increase for maintaining a
premises for the purpose of distributing cocaine base. See U.S.
Sentencing Guidelines Manual (“USSG”) § 2D1.1(b)(1), (b)(12)
(2011). Mason objected to these enhancements, arguing that the
facts alleged in the PSR did not support either enhancement.
The district court overruled Mason’s objections and sentenced
him to 151 months’ imprisonment.
On appeal, Mason argues that the application of both
enhancements violates his Sixth Amendment right to a trial by
jury as articulated in Alleyne v. United States, 133 S. Ct. 2151
(2013). He contends that any fact that increases the applicable
advisory Guidelines range must be alleged in the indictment and
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proved beyond a reasonable doubt, because the Guidelines form
the essential starting point for federal sentencing. The
Government asserts that Alleyne is inapplicable because the
enhancements did not affect Mason’s statutory mandatory minimum
sentence.
Although Mason objected to the application of these
enhancements at sentencing, he argued only that the factual
foundation was lacking, not that the enhancements violated his
constitutional rights. Therefore, our review is for plain
error. Under the plain-error standard, a defendant “must
establish that the district court erred, that the error was
plain, and that it affected his substantial rights.” United
States v. Robinson, 627 F.3d 941, 954 (4th Cir. 2010) (internal
quotation marks and alterations omitted) (citing United States
v. Olano, 507 U.S. 725, 734 (1993)). And even if a defendant
meets this heavy burden, an appellate court has “discretion
whether to recognize the error, and should not do so unless the
error seriously affects the fairness, integrity or public
reputation of judicial proceedings.” United States v. Hargrove,
625 F.3d 170, 184 (4th Cir. 2010) (internal quotation marks
omitted). Here, the district court did not commit error – much
less plain error – and we therefore affirm its application of
the sentencing enhancements.
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In Alleyne, the Supreme Court held that any fact,
other than a prior conviction, that increases the statutory
minimum punishment is an element that must be charged in the
indictment and proved beyond a reasonable doubt. 133 S. Ct.
2151, 2155, 2162-63 (2013). The Court cautioned that its
holding did not disturb judicial factfinding at sentencing for
facts that do not impact the statutory punishment. Id. at 2163.
The sentencing enhancements Mason challenges affect only the
advisory Guidelines calculations and not the statutory mandatory
minimum punishment. See USSG § 2D1.1(b)(1), (b)(12) (2011).
Therefore, the district court did not err in applying these
enhancements.
Accordingly, we affirm the district court’s judgment.
We dispense with oral argument because the facts and legal
contentions are adequately presented in the material before this
court and argument will not aid the decisional process.
AFFIRMED
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