United States v. Newbold , 215 F. App'x 289 ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4159
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JOSEPH K. NEWBOLD,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. William L. Osteen, District
Judge. (1:05-cr-00262-WLO)
Argued: November 29, 2006 Decided: January 31, 2007
Before WILLIAMS and KING, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
ARGUED: Elizabeth Brooks Scherer, SMITH MOORE, L.L.P., Raleigh,
North Carolina, for Appellant. Randall Stuart Galyon, Assistant
United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Greensboro, North Carolina, for Appellee. ON BRIEF: James D.
Cowan, Jr., SMITH MOORE, L.L.P., Greensboro, North Carolina, for
Appellant. Anna Mills Wagoner, United States Attorney, Greensboro,
North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Joseph Kenneth Newbold pleaded guilty to distributing 5.3
grams of a substance containing 5-Methoxy-alpha-methyltryptamine
(5-MeO-AMT), in violation of 21 U.S.C.A. §§ 841(a)(1), (b)(1)(C)
(West 1999 & Supp. 2006), money laundering, in violation of 18
U.S.C.A. §§ 2 (West 2000 & Supp. 2006) and 1956(a)(3)(B) (West 2000
& Supp. 2006), and being a felon in possession of a firearm, in
violation of 18 U.S.C.A. §§ 922(g)(1) (West 2000 & Supp. 2006) and
924(a)(2) (West 2000 & Supp. 2006). The district court sentenced
Newbold to a total term of 225 months’ imprisonment. On appeal,
Newbold argues that the district court erred in sentencing him as
a career offender and an armed career criminal and that his
sentence was imposed in violation of his confrontation and jury-
trial rights under the Sixth Amendment. Finding no error, we
affirm.
I.
The North Carolina State Bureau of Investigation (SBI), the
Randolph County Sheriff’s Office in Asheboro, North Carolina, and
the Eden, North Carolina police department began investigating
Newbold in July 2004 on suspicion that he was distributing
controlled substances. On July 28, 2004, two undercover SBI agents
and a confidential informant met Newbold at a convenience store in
Randleman, North Carolina; at the meeting, Newbold sold them 468.1
grams of marijuana and 50 gel capsules containing 5.3 grams of 5-
2
MeO-AMT. Over the next few months, the undercover agents completed
a number of other controlled drug transactions with Newbold.
During one of these transactions, Newbold mentioned to the SBI
agents that he could launder drug money for them; the agents agreed
to go along with the money-laundering scheme and brought in an
undercover agent from the Internal Revenue Service to pose as the
money handler for the drug organization. Newbold created a shell
corporation, secured a fake W-2 and birth certificate for one of
the undercover agents, and aided in establishing a post office box
and corporate checking account for the corporation. With the
pieces of his laundering scheme in place, Newbold began laundering
various cash amounts for the undercover agents.
On July 13, 2006, federal agents executed search and arrest
warrants at Newbold’s home. The agents recovered eight firearms,
including two assault rifles, and a small amount of marijuana.
During an interview on July 13, 2006, Newbold admitted, after
waiving his Miranda rights, that he laundered money provided by the
undercover agents, carried a firearm when distributing drugs to the
agents, and carried a .44 caliber revolver when he received $40,000
in cash from the agents on February 2, 2005. Newbold also admitted
that he kept a .357 Magnum near the marijuana in his house to fend
off would-be robbers.
On July 25, 2005, a grand jury sitting in the Middle District
of North Carolina indicted Newbold for the distribution of 5.3
grams of 5-MeO-AMT (Count One) and 468.1 grams of marijuana (Count
3
Two); money laundering in the sums of $9,900 (Count Three), $100
(Count Four), $10,300 (Count Five), and $41,200 (Count Six); and
for being a felon in possession of a firearm (Count Seven). On
September 8, 2005, Newbold executed a written plea agreement with
the Government in which he pleaded guilty to Counts One, Three, and
Seven in exchange for the Government’s dismissal of the remaining
counts of the indictment. As part of the plea agreement, Newbold
admitted to distribution of 5.3 grams of 5-MeO-AMT. The district
court accepted Newbold’s guilty plea the same day.
The probation officer filed a presentence report (PSR)
calculating Newbold’s offense level at 34 under the “armed career
criminal” provision of the U.S. Sentencing Guidelines Manual, §
4B1.4(b)(3)(A) (2004). The PSR also noted that Newbold qualified
as a career offender under U.S.S.G. § 4B1.1, but applied the armed-
career-criminal enhancement instead because it resulted in a higher
offense level. After a three-level downward adjustment for
acceptance of responsibility, the PSR recommended a total offense
level of 31. Newbold’s seven criminal history points would have
normally resulted in a criminal history category of IV, but because
the probation officer determined that Newbold qualified as a career
offender, his criminal history category was automatically increased
to VI pursuant to U.S.S.G. § 4B1.1. The resulting sentence range
was 188 to 235 months’ imprisonment.
4
Newbold filed written objections to the PSR, including broad
objections to the PSR’s reliance on facts supporting upward
adjustments that were neither admitted by Newbold nor proved to a
jury beyond a reasonable doubt. Newbold also objected to the PSR’s
application of the career-offender and armed-career-criminal
enhancements.
At Newbold’s sentencing hearing on January 10, 2006, the
district court adopted the PSR’s recommendations over Newbold’s
objections, including his objection at the hearing that the
district court violated his rights under the Confrontation Clause
by relying on testimonial hearsay in the PSR, and sentenced Newbold
to 225 months’ imprisonment on each of Counts One, Three, and
Seven, to run concurrently, followed by three years of supervised
release on Counts One and Three, and five years of supervised
release on Count Seven. (J.A. at 85.) Newbold timely noted an
appeal. We have jurisdiction pursuant to 28 U.S.C.A. § 1291 (West
2006) and 18 U.S.C.A. § 3742(a) (West 2000).
II.
Newbold argues on appeal that (1) the district court erred in
applying the § 4B1.1 career-offender enhancement because it
improperly found that two of his previous drug offenses were
separate offenses for sentencing purposes; (2) the district court
erred in sentencing him as an armed career criminal because his
5
previous felony drug convictions do not qualify as predicate
offenses under 18 U.S.C.A. § 924(e); (3) the district court’s
reliance on testimonial hearsay at sentencing violated his rights
under the Confrontation Clause; (4) the district court committed
Sixth-Amendment error in applying the career-offender and armed-
career-criminal enhancements because Newbold’s previous convictions
were not charged in the indictment and were neither admitted by him
nor proved to the jury; and (5) his sentence also violates the
Sixth Amendment because it is based on other judicially-found facts
-- including facts about drug quantity and laundered cash amounts
-- that were not submitted to the jury. We address each of these
arguments in turn.
A.
Newbold first argues that the district court erred in
sentencing him as a career offender under U.S.S.G. § 4B1.1. “In
assessing a challenge to a sentencing court’s application of the
Guidelines, we review the court’s factual findings for clear error
and its legal conclusions de novo.” United States v. Allen, 446
F.3d 522, 527 (4th Cir. 2006).
Guideline § 4B1.1(a) provides:
A defendant is a career offender if (1) the defendant was
at least eighteen years old at the time of the instant
offense of conviction; (2) the instant offense of
conviction is a felony that is either a crime of violence
or a controlled substance offense; and (3) the defendant
6
has at least two prior felony convictions of either a
crime of violence or a controlled substance offense.
U.S.S.G. § 4B1.1.
The district court applied the career-offender enhancement
because it found that Newbold’s 1984 state and federal felony
convictions for drug distribution were two separate offenses for
sentencing purposes. Newbold does not deny that the § 4B1.1
enhancement would otherwise apply to him, but he argues that these
two previous drug offenses are “related” under the meaning of
Guideline § 4A1.21 and therefore should have been treated as one
offense for sentencing purposes. He points out that the offenses
were close in both proximity and time, shared a similar modus
operandi, and were part of the same drug conspiracy. Additionally,
Newbold notes that the two 1984 convictions were prosecuted and
sentenced separately only because two different sovereigns -- the
federal government and the state of North Carolina -- took
jurisdiction over the offenses.
Based on the commentary to U.S.S.G. § 4A1.2, however, “[p]rior
sentences are not considered related if they were for offenses that
were separated by an intervening arrest.” U.S.S.G. § 4A1.2 cmt.
n.3. Newbold concedes that an intervening arrest separated his two
1984 drug convictions. Accordingly, the district judge properly
1
Application Note 3 of U.S.S.G. § 4B1.1 instructs a sentencing
court to consult U.S.S.G. § 4A1.2 to determine the number of
qualifying prior convictions for a defendant. U.S. Sentencing
Guidelines Manual § 4B1.1 cmt. n.3 (2004).
7
applied the career-offender enhancement because the two previous
convictions are not related for sentencing purposes. See United
States v. Collins, 412 F.3d 515, 520 (4th Cir. 2005)(holding that
two previous convictions were not “related” for sentencing purposes
when they were separated by an intervening arrest).
B.
Newbold also argues that the district court erred in applying
U.S.S.G. § 4B1.4, the armed career-criminal enhancement, to his
sentence because the three previous offenses relied on by the
district court in applying the enhancement do not qualify as
predicate offenses under the Armed Career Criminal Act (ACCA), 18
U.S.C.A. § 924(e). “Whether [a prior] conviction qualifies as a
predicate conviction under section 924(e) is a question of statutory
interpretation [that we] review[] de novo.” United States v.
Brandon, 247 F.3d 186, 188 (4th Cir. 2001).
The ACCA imposes a mandatory minimum fifteen year sentence for
any defendant who violates § 922(g) and has three previous
convictions for “violent felon[ies]” or “serious drug offense[s],”
or both. 18 U.S.C.A. § 924(e)(1). “Serious drug offense” is
defined in pertinent part as “an offense under State law, involving
manufacturing, distributing, or possessing with intent to
manufacture or distribute, a controlled substance . . . for which
a maximum term of imprisonment of ten years or more is prescribed
by law.” 18 U.S.C.A. § 924(e)(2)(A)(ii). The district court
8
sentenced Newbold as an armed career criminal because it found that
three of his previous drug convictions -- namely, his 1980, 1981,
and 1984 North Carolina felony convictions for possession with
intent to sell and deliver controlled substances -- were “serious
drug offenses” under the statute. Although Newbold makes several
arguments as to why these three prior convictions are not “serious
drug offenses” for purposes of the ACCA, none of these arguments
persuade us that the district court erred in sentencing him as an
armed career criminal.
1.
First, Newbold contends that because the certificate of
restoration of citizenship that North Carolina issued him upon his
discharge from federal supervision did not expressly provide that
he could not possess a firearm, his three prior North Carolina
convictions cannot serve as predicate offenses under the ACCA.
Newbold bases his argument on 18 U.S.C.A. § 921(a)(20), which he
claims prevents any conviction for which a certificate of
restoration of citizenship has been provided from serving as a
predicate crime under § 924(e)(2) when that certificate does not
expressly provide that the defendant cannot possess a firearm.
Newbold received a certificate of restoration of citizenship from
North Carolina on August 3, 2000, following his discharge from
federal supervision in 1999. It is undisputed that the certificate
does not expressly provide that Newbold cannot possess a firearm.
9
As such, Newbold argues that his previous state drug convictions
cannot serve as predicate crimes under the ACCA.2
As an initial matter, we must address the Government’s argument
that the “restoration-of-rights” exception under § 921(a)(20) does
not apply to “serious drug offenses.” Unlike the definition of
“serious drug offense,” the definition of “violent felony” includes
the phrase “crime punishable by imprisonment for a term exceeding
one year.” 18 U.S.C.A. § 924(e)(2)(B). Section 921(a)(20) in turn
states that what constitutes a “crime punishable by imprisonment for
a term exceeding one year” is
determined in accordance with the law of the jurisdiction
in which the proceedings were held. Any conviction . .
. for which a person has been pardoned or had civil
rights restored shall not be considered a conviction for
purposes of [the armed career enhancement], unless such
pardon, expungement, or restoration of civil rights
2
We assume for the sake of argument that the June 28, 1999
certificate was intended to cover Newbold’s previous state drug
convictions in North Carolina. We note, however, that the
certificate’s language suggests that this may not have been the
case. The only certificate of restoration of citizenship provided
by North Carolina to Newbold that was included in the record
provides that Newbold “was convicted of a crime against the United
States or another state,” not against the state of North Carolina.
(J.A. at 146. (emphasis added)). This phrasing tracks the language
of N.C. Gen. Stat. § 13-2 (2005), which describes the process for
issuing and filing a certificate of restoration of citizenship and
clearly distinguishes between cases involving persons convicted of
crimes under North Carolina law, N.C. Gen. Stat. § 13-2(a), and
cases involving persons “convicted of a crime against another state
or the United States,” N.C. Gen. Stat. § 13-2(b). On the other
hand, we acknowledge that it would have made little practical sense
for North Carolina to issue two separate certificates to Newbold;
either one would have been enough evidence that his rights under
North Carolina law had been seemingly restored.
10
expressly provides that the person may not ship,
transport, possess, or receive firearms.
18 U.S.C.A. § 921(a)(20).
The Government contends that because the definition of “serious drug
offense” does not reference the phrase “crime punishable by
imprisonment for a term exceeding one year,” we do not need to
consult § 921(a)(20)’s “restoration-of-rights” provision in
determining whether a conviction is a “serious drug offense” under
the statute. This interpretation of the statutory scheme is without
merit. While it is true that the definition of “serious drug
offense” in § 924(e)(2)(A) does not use the phrase “crime punishable
by imprisonment for a term exceeding one year,” convictions that
would otherwise qualify as “serious drug offenses” by definition
come within the meaning of that phrase. “Serious drug offense” is
defined, inter alia, as “an offense under State law . . . for which
a maximum term of imprisonment of ten years or more is prescribed
by law.” 18 U.S.C.A. § 924(e)(2)(A). Additionally, convictions
that would otherwise qualify as “serious drug offenses” are not
among the crimes that are excluded by § 921(a)(20) from the
definition of “crime punishable by imprisonment for a term exceeding
one year.” See 18 U.S.C.A. § 921(a)(20)(A)-(B) (excluding various
crimes). Thus, any conviction that would come within the definition
of “serious drug offense” would also necessarily qualify as a “crime
punishable by imprisonment for a term exceeding one year.” There
is therefore no interpretive reason to determine whether a crime is
11
a “serious drug offense” without resort to the “restoration-of-
rights” provision in § 921(a)(20).
Having concluded that § 921(a)(20) is pertinent to the
determination of whether Newbold’s previous drug convictions were
serious drug offenses, we now turn to Newbold’s argument. We first
note that, aside from the issues surrounding the certificate, see
supra note 2, there is no question that Newbold’s right to possess
a firearm had not been restored by the time North Carolina revised
its Felony Firearms Act in 1995. Under North Carolina’s Felony
Firearms Act in effect at the time of Newbold’s previous
convictions, felons could have their firearm rights restored once
five years had elapsed from the time of their release from prison.
N.C. Gen. Stat. § 14-415.1(a) (1993), amended by N.C. Gen. Stat. §
14-415.1(a) (2005). In 1995, North Carolina revised its Felony
Firearms Act,3 replacing the five-year firearm disability with a
complete ban on felons possessing most types of firearms. N.C. Gen.
Stat. § 14-415.1(a) (2005). Prior to December 1, 1995, the
effective date of the revised act, Newbold was never out of state
or federal custody long enough for his firearm rights to have been
restored under the previous version of the Felony Firearms Act.
3
In a related argument, Newbold argues that the revised Felony
Firearms Act, N.C. Gen. Stat. § 14-415.1(a) (2005), is ex post
facto as applied to him. We have rejected this argument in United
States v. Farrow, 364 F.3d 551, 555 (4th Cir. 2004) (holding that
retroactive application of North Carolina’s Felony Firearms Act’s
complete ban on felon firearm possession does not violate the Ex
Post Facto Clause).
12
After December 1, 1995, Newbold was completely banned under North
Carolina law from possessing a firearm irrespective of the time he
had been out of prison.
As noted above, Newbold, relying on the plain language of §
921(a)(20), contends that his previous convictions cannot serve as
predicate crimes under the ACCA as a matter of law because his
certificate of restoration of rights does not “expressly provide”
that he cannot possess a firearm. 18 U.S.C.A. § 921(a)(20). While
his argument has some force, we have determined that the “better
reasoned approach” is to “look to the whole of state law,” including
state law concerning a convicted felon’s firearm privileges. United
States v. McLean, 904 F.2d 216, 218 (4th Cir. 1990). Looking to the
whole of North Carolina law, at the time Newbold received his
certificate on August 3, 2000, North Carolina’s Felony Firearms Act
completely and permanently banned Newbold from possessing firearms.
Under our precedent, then, the Firearms Act “expressly provides” the
circumstances under which a “‘person may not ship, transport,
possess, or receive firearms,’ as required by . . . § 921(a)(20).”
Id. at 219; see also United States v. King, 119 F.3d 290, 293 (4th
Cir. 1997)(“In determining whether a defendant’s civil rights have
been restored, we ‘look to the whole of state law . . . .’”). We
therefore reject Newbold’s argument.
2.
Newbold next argues that his previous state drug convictions
are not predicate offenses under the ACCA because while they
13
previously carried “term[s] of imprisonment of ten years or more”
under North Carolina law, they do not currently carry terms of
imprisonment of ten years or more because North Carolina decreased
the penalties for those crimes when it revised its sentencing scheme
in 1994.4 He points out that the statutory definition of “serious
drug offense” uses the phrase “is prescribed by law” instead of “was
prescribed by law” to support his argument that the determination
of whether a crime carries a term of imprisonment of ten years or
more must be made at the time of federal sentencing rather than at
the time of the previous conviction.
In further support of his view, Newbold points us to the Sixth
Circuit’s decision in United States v. Morton, 17 F.3d 911 (6th Cir.
1994). In Morton, the district court had concluded that it should
determine whether the defendant’s previous convictions were serious
drug offenses at the time of the convictions and not at the time of
sentencing. On appeal, the Morton court held that principles of
lenity required the district court to determine whether the
defendant’s previous convictions were serious drug offenses at the
time of sentencing. Id. at 916. Because Tennessee did not consider
the defendant’s previous trafficking offenses serious enough to
impose at least a ten-year sentence at the time of sentencing, the
4
The Government contends that we should review this particular
argument for plain error, but Newbold clearly made this argument in
his written objections to his PSR. Accordingly, we review his
claim de novo. United States v. Brandon, 247 F.3d 186, 188 (4th
Cir. 2001).
14
Morton court vacated the district court’s sentence and remanded for
resentencing. Id.The Government counters with the Fifth Circuit’s decision in
United States v. Hinojosa, 349 F.3d 200 (5th Cir. 2003).
Distinguishing Morton, the Hinojosa court held the defendant’s three
drug convictions that predated the effective date of the revisions
to Texas’s criminal code qualified as “serious drug offenses” under
the ACCA. Id. at 205. The court noted that, unlike the Tennessee
sentencing scheme at issue in Morton, Texas’s revised scheme
“specifically provides that the revised sentences do not apply to
crimes committed before the effective date of the revisions.” Id.The court concluded that “even under Morton, [the defendant’s]
previous convictions would be for ‘serious drug offenses’ because
if he were sentenced by the state . . . today, he would still be
subject to a maximum term of at least ten years.” Id.When North Carolina revised its sentencing scheme in 1994, it
specifically provided that the revised sentences do not apply to
crimes committed before the effective date of the revisions. N.C.
Gen. Stat. § 15A-1340.10 (2005); State v. Branch, 518 S.E.2d 213,
215 (N.C. Ct. App. 1999)(explaining that the defendant's “offenses
that were committed prior to 1 October 1994, the effective date of
the Structured Sentencing Act, fall under the sentencing guidelines
of the Fair Sentencing Act as a matter of law”). In effect, then,
North Carolina has two sentencing schemes: one for crimes committed
before October 1, 1994 and one for crimes committed after October 1,
15
1994. In this regard, North Carolina’s revised sentencing scheme is
similar to the Texas sentencing scheme at issue in Hinojosa, and we
find the Fifth Circuit’s reasoning in that case persuasive. If
Newbold was tried and convicted today for the three drug offenses at
issue, he would still be subject to the higher sentences imposed by
the pre-1994 sentencing statutes. Thus, Newbold’s three previous
felony drug convictions were punishable by a term of imprisonment of
at least ten years or more at the time he committed the crimes and
at the time the district court sentenced him in this case. We
therefore reject Newbold’s argument.
3.
Newbold argues that even if the determination about whether a
previous offense is a “serious drug offense” is made at the time of
federal sentencing, his previous drug convictions still do not count
as predicate crimes under § 924(e) because, in light of the Supreme
Court’s decision in Blakely v. Washington, 542 U.S. 296 (2004), his
crimes do not carry a “statutory maximum” sentence of at least ten
years. Blakely held that the “statutory maximum” penalty for an
offense is “the maximum sentence a judge may impose solely on the
basis of the facts reflected in the jury verdict or admitted by the
defendant.” Id. at 303. Under North Carolina’s now-superseded Fair
Sentencing Act, which was in effect at the time of Newbold’s three
previous drug convictions, Newbold’s previous drug convictions were
Class H felonies that each carried a presumptive penalty of no more
than six years. See N.C. Gen. Stat. § 15A-1340.4(f)(6), repealed by
16
Structured Sentencing Act. Under the Fair Sentencing Act, a
sentencing court was required to impose a presumptive sentence
unless it found “aggravating factors,” by a preponderance of the
evidence, that warranted an enhanced sentence above the presumptive
range. Id. § 15A-1340.4. If a court found aggravating factors, it
could impose a sentence up to the maximum sentence permitted by
statute, which was ten years for Class H felonies. Id.
Newbold maintains that because the specific facts of his
previous convictions did not provide any basis for imposition of a
sentence exceeding the presumptive range -– i.e., that no
“aggravated” facts were admitted by him or proved to a jury –- under
Blakely5 his prior convictions were not for offenses punishable by
5
In his brief, Newbold initially relied on the North Carolina
Supreme Court’s decision in State v. Allen, 615 S.E.2d 256, 260-61
(N.C. 2005), opinion withdrawn, 635 S.E.2d 899 (N.C. 2006), in
support of this Blakely-based argument. In Allen, the North
Carolina Supreme Court, construing North Carolina’s current
Structured Sentencing Act, stated that “other than the fact of a
prior conviction, any fact that increases the penalty for a crime
beyond the prescribed presumptive range must be submitted to the
jury and proved beyond a reasonable doubt.” Id. at 265. After
briefing, but before oral argument, the state Supreme Court
withdrew its opinion in Allen in response to the U.S. Supreme
Court’s decision in Washington v. Recuenco, 126 S. Ct. 2546 (2006).
Recuenco held that failure to submit a sentencing factor to the
jury is not a structural error that always invalidates a conviction
and thus can be evaluated under the harmless-error standard. Id.
at 2551. Allen was withdrawn solely to reconsider whether the
Blakely error in that case was harmless. State v. Allen, 635
S.E.2d 899, 899 (N.C. 2006).
While Allen has been withdrawn, Newbold contends in a letter
submitted pursuant to Fed. R. App. P. 28(j) that the decision’s
constitutional analysis remains intact, excepting the harmless-
error issue, and that the withdrawal of the decision has no bearing
on the issue on appeal. Newbold’s position is supported by the
North Carolina Supreme Court’s post-Allen decision in State v.
17
a term of imprisonment of at least ten years. He explains that
although the maximum aggravated punishment for his previous
convictions would have been at least ten years, the maximum non-
aggravated punishment was six years, which, as the maximum sentence
allowed under Blakely, is less than the ten years needed to serve as
predicate “serious drug offenses” under the ACCA.
While clever, Newbold’s argument must fail. Section
924(e)(2)’s definition of “serious drug offense” requires that the
previous conviction be “an offense . . . for which a maximum term of
imprisonment of ten years or more is prescribed by law.” 18
U.S.C.A. 924(e)(2)(emphases added). Clearly, the word “maximum” is
linked to the conduct, the “offense,” and not to the individual
convicted of the offense. Thus, the proper inquiry under §
924(e)(2) is not whether the individual defendant was sentenced to
a term of ten years or more, but whether any defendant convicted of
the crime could be sentenced to ten years or more of imprisonment.
If any possible conviction for the offense carries a term of
imprisonment of at least ten years, then the offense may serve as a
Norris, 630 S.E.2d 915, 916 (N.C. 2006). The Government, however,
argues that Newbold’s reliance on Allen was misplaced in the first
place because Allen expressly limited applications of its holdings
to “cases in which the defendants have not been indicted as of the
certification date of this opinion and to cases that are now
pending on direct review or are not yet final.” Allen, 615 S.E.2d
at 450 (internal quotation marks omitted). We need not delve into
this disagreement here, as Newbold’s argument can be pressed on the
basis of Blakely without resort to reliance on Allen.
18
predicate crime under the ACCA. We have reached similar conclusions
in other contexts. See United States v. Jones, 195 F.3d 205, 206-07
(4th Cir. 1999)(holding in the context of a § 922(g)(1) conviction
that a prior North Carolina conviction was for a “crime punishable
by imprisonment for a term exceeding one year” if any defendant
charged with that crime could receive a sentence of more than one
year); United States v. Harp, 406 F.3d 242, 246-47 (4th Cir.
2005)(reaching same conclusion as Jones in interpreting nearly
identical language under U.S.S.G. § 4B1.2).
Blakely does not change this outcome. North Carolina courts
have concluded that the state sentencing regime can accommodate the
process that Blakely demands; so long as aggravating factors are
admitted by the defendant or proved to the jury beyond a reasonable
doubt, a sentencing court may impose a sentence above the
presumptive range and up to the maximum sentence allowed by statute.
See State v. Norris, 630 S.E.2d 915, 916 (N.C. 2006)(assuming that,
after Blakely, “aggravating” factors may still enhance a defendant’s
sentence beyond the presumptive range so long as such factors are
admitted by the defendant or proved to a jury beyond a reasonable
doubt). Moreover, our decision in Harp dictates that, even post-
Blakely, “we consider the maximum aggravated sentence that could be
imposed for that crime upon a defendant with the worst possible
criminal history.” Harp, 406 F.3d at 246 (emphasis omitted). Thus,
even taking Blakely’s holding into account, Newbold’s previous drug
convictions still count as predicate “serious drug offenses” under
19
the ACCA because some instance of conviction of those crimes could
result in a sentence of ten years’ imprisonment. Accordingly, the
district court did not err in sentencing Newbold as an armed career
criminal pursuant to § 924(e)(2) and U.S.S.G. § 4B1.4.
C.
We also reject Newbold’s argument that the district court
violated his confrontation rights under the Sixth Amendment by
relying on testimonial hearsay in the PSR at sentencing. Because
Newbold preserved this issue by objecting on the basis of Crawford
v. Washington, 541 U.S. 36 (2004), we review de novo his Sixth
Amendment claim. See United States v. Mackins, 315 F.3d 399, 405
(4th Cir. 2003).
In Crawford, the Supreme Court held that the Confrontation
Clause prohibits the admission at trial of testimonial statements
that are not subject to cross-examination. Id. at 50-51.
Dissenting in Blakely, Justice Breyer suggested that under the
Blakely majority’s interpretation of the Sixth Amendment, district
courts’ use of PSRs containing testimonial hearsay might violate the
Confrontation Clause under Crawford. Blakely, 542 U.S. at 346(Breyer, J., dissenting). Seizing on Justice Breyer’s observation,
Newbold invites us to extend Crawford to sentencing and hold here
that the district court’s reliance on the PSR -- which he contends
is brimming with testimonial hearsay -- violated the Confrontation
Clause.
20
While post-Crawford and post-Blakely/Booker courts have paused
to question the continuing validity of allowing testimonial hearsay
at sentencing, none of those courts have concluded that the rule
announced in Crawford applies at sentencing. See United States v.
Katzopoulos, 437 F.3d 569, 576 (6th Cir. 2006)(“Though the cases may
be a broad signal of the future, there is nothing specific in
Blakely, Booker, or Crawford that would cause this Court to reverse
its long-settled rule of law that [the] Confrontation Clause permits
the admission of testimonial hearsay at sentencing proceedings.”);
United States v. Chau, 426 F.3d 1318, 1323 (11th Cir. 2005)(same);
United States v. Martinez, 413 F.3d 239, 243 (2d Cir. 2005)(same);
United States v. Luciano, 414 F.3d 174, 179 (1st Cir. 2005)(same).
We likewise find nothing in Blakely or Booker that “necessitates a
change in the majority view that there is no Sixth Amendment right
to confront witnesses during the sentencing phase.” Luciano, 414
F.3d at 179. We therefore reject Newbold’s Confrontation Clause
argument.
D.
Newbold also argues that his sentence violates the Sixth
Amendment because it contains a number of offense-level adjustments
-- including adjustments based on drug-quantity, firearms
possession, and amounts laundered -- that were based on
impermissible factual findings by the district court and not on
facts admitted by him or found by a jury beyond a reasonable doubt.
21
He cites Blakely and Booker as support for his argument. There are,
however, two problems with this argument, one practical and one
precedential. First, as a practical matter, we note that the
district court’s factual findings concerning drug quantity,
Newbold’s possession of a firearm in connection with drug and money
laundering offenses, and cash amounts laundered by him did not
affect his sentence because the district court ultimately sentenced
him as an armed career criminal pursuant to § 924(e) and U.S.S.G. §
4B1.4. This automatically increased his offense level to 34, which
exceeded the offense level that was calculated based on the various
factual findings that Newbold now challenges. Even assuming for the
sake of argument that the district court erred in finding these
facts, they ultimately did not bear on the length of Newbold’s
sentence.
Second, as a precedential matter, we have held post-Booker that
district courts do not violate the Sixth Amendment by finding facts
at sentencing under an advisory Guidelines regime that do not
increase a defendant’s sentence beyond the statutory maximum
sentence that could have been imposed based on the defendant’s
admissions and jury findings alone. United States v. Morris, 429
F.3d 65, 72 (4th Cir. 2005). We have stated that “Booker does not
in the end move any decision from judge to jury, or change the
burden of persuasion,” and that the “remedial portion of Booker held
that decisions about sentencing factors will continue to be made by
judges, on a preponderance of the evidence, an approach that
22
comports with the sixth amendment so long as the guideline system
has some flexibility in application.” Id. (internal quotation marks
omitted). Because Newbold’s within-Guidelines sentence does not
exceed the statutory maximum sentence that could have been imposed
based on his admissions alone, there is no cognizable Sixth
Amendment error.
This leads us to Newbold’s final argument. Newbold contends
that the district court should not have applied the career-offender
and armed-career-criminal enhancements to his sentence because his
previous convictions were not charged in the indictment and were
neither admitted by Newbold nor proved to the jury. Newbold does
not challenge the existence of his prior convictions; rather, he
argues that the Supreme Court’s decisions in Apprendi v. New Jersey,
530 U.S. 466 (2000), Blakely, and Booker all “suggest that when
sentencing pursuant to a recidivist statute or guideline
enhancement, a defendant’s prior convictions must either be admitted
to by the defendant or pled and proven by the government beyond a
reasonable doubt.” (Appellant’s Br. at 7-8.)
Newbold’s argument, however, is foreclosed by the Supreme
Court’s decision in Almendarez-Torres v. United States, 523 U.S.
224, 227 (1998)(holding that, for purposes of sentencing under
recidivist provisions in statutes, prior convictions do not need to
be charged in the indictment or proved to the jury). As we
explained in United States v. Cheek, 415 F.3d 349 (4th Cir.), cert.
denied, 126 S. Ct. 640 (2005), “we are not free to overrule or
23
ignore the Supreme Court’s precedents.” Id. at 353 (citing State
Oil Co. V. Khan, 522 U.S. 3, 20 (1997)(“[I]t is the [Supreme]
Court’s prerogative alone to overrule one of its precedents.”)).
Until that day comes, we must reject Newbold’s argument.6
III.
In sum, we hold that the district court properly applied the
career-offender and armed-career-criminal enhancements in determining
Newbold’s sentence. We likewise reject Newbold’s arguments that the
district court violated the Sixth Amendment by sentencing him based
on facts not submitted to the jury and by relying on testimonial
hearsay at sentencing. Accordingly, we affirm Newbold’s convictions.
AFFIRMED
6
Newbold concedes that he primarily makes this argument to
preserve it for future review because he believes that Almendarez-
Torres has been called into question by Blakely and Booker.
24