United States v. Lee , 139 F. App'x 522 ( 2005 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4012
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
MACON LEONARD LEE,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. N. Carlton Tilley, Jr.,
Chief District Judge. (CR-04-256)
Submitted: June 17, 2005 Decided: July 18, 2005
Before MOTZ, KING, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Louis C. Allen, III, Federal Public Defender, William S. Trivette,
Assistant Federal Public Defender, Greensboro, North Carolina, for
Appellant. Anna Mills Wagoner, United States Attorney, Randall S.
Galyon, Assistant United States Attorney, Greensboro, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Macon Leonard Lee appeals his conviction for possession
with intent to distribute 118.8 grams of cocaine base in violation
of 21 U.S.C. § 841 (2000), and his sentence of life imprisonment
under the enhanced penalty provision of § 841(b)(1)(A). Finding no
error, we affirm.
Lee first challenges the district court’s application of
§ 841(b)(1)(A)’s mandatory life sentence under United States v.
Booker, 125 S. Ct. 738 (2005). He preserved this issue for
appellate review. Lee argues the district court violated Booker by
enhancing his sentence under § 841(b)(1)(A) based on his two prior
felony drug convictions when those convictions were not charged in
the indictment or found by the jury. We note that Lee does not
deny the fact of his two prior felony drug trafficking offenses,
and the record of the sentencing hearing reflects that Lee, by
counsel, conceded that he had been convicted of the predicate
offenses for § 841's mandatory life sentence.* Because Lee’s life
sentence was mandated by statute, the then mandatory sentencing
guidelines did not have any effect on his sentence. Accordingly,
we find there is no error under Booker. See United States v.
*
In any event, even if Lee had challenged the fact of the
prior convictions, the district court’s finding of predicate
convictions would fall squarely in the prior conviction exception
still viable after Booker. See, e.g., Shepard v. United States,
125 S. Ct. 1254 (2005); Apprendi v. New Jersey, 530 U.S. 466, 490
(2000); Almendarez-Torres v. United States, 523 U.S. 224, 488
(1998).
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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.”).
Lee next argues that his life sentence is
constitutionally disproportionate to his offense in violation of
the Eighth Amendment’s ban against cruel and unusual punishment.
In considering this argument, we apply the three-part test of
Solem v. Helm, 463 U.S. 277 (1983), which examines: “(1) the
gravity of the offense and the harshness of the penalty, (2) the
sentences imposed on other criminals in the same jurisdiction, and
(3) the sentences imposed for commission of the same crime in other
jurisdictions.” United States v. Kratsas, 45 F.3d 63, 66 (4th Cir.
1995); see also Harmelin v. Michigan, 501 U.S. 957 (1991). We
conclude that Lee’s sentence is not constitutionally
disproportionate. His offense was serious and involved a
relatively large amount of cocaine base. Also, Lee is a repeat
drug trafficking offender. Applying the second prong of Solem,
this court has concluded that “it is clear that a life sentence for
a major drug violation is not disproportionate in comparison with
other sentences mandated by the Guidelines and other drug
statutes.” Kratsas, 45 F.3d at 68.
Lee also argues that the district court abused its
discretion in admitting evidence under Federal Rule of Evidence
404(b) relating to two of Lee’s arrests for drug possession and
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sale. Rule 404(b) of the Federal Rules of Evidence prohibits the
admission of evidence of other bad acts solely to prove a
defendant’s bad character, but such evidence may be admissible for
other purposes, such as “proof of motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of mistake or
accident.” Fed. R. Evid. 404(b); see also United States v. Hodge,
354 F.3d 305, 311-12 (4th Cir. 2004). The decision of the district
court to admit such evidence is discretionary and will not be
disturbed unless it is “arbitrary or irrational.” See United
States v. Rawle, 845 F.2d 1244, 1247 (4th Cir. 1988). We conclude
the district court did not abuse its discretion in admitting the
challenged evidence.
Finally, Lee argues that the evidence was insufficient to
sustain his conviction. This court must affirm Lee’s jury
conviction if there is substantial evidence, when viewed in the
light most favorable to the Government, to support the jury’s
verdict. Glasser v. United States, 315 U.S. 60, 80 (1942). We
conclude there was sufficient evidence to support the jury’s
verdict.
Accordingly, we affirm Lee’s conviction and 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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