United States v. Sales , 169 F. App'x 162 ( 2006 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4559
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
CLAUDE PERCY SALES,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. Frank W. Bullock, Jr.,
District Judge. (CR-04-260)
Submitted: January 25, 2006 Decided: February 27, 2006
Before TRAXLER and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.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, Robert A.J.
Lang, Assistant 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Unpublished opinions are not binding precedent in this circuit.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:
Claude Percy Sales appeals from his 180-month sentence
imposed pursuant to his guilty plea to possession of a firearm by
a convicted felon. On appeal, he asserts that his sentence should
not have been enhanced under the Armed Career Criminal Act (“ACCA”)
because (1) such an enhancement violated United States v. Booker,
543 U.S. 220 (2005), and (2) his prior North Carolina breaking and
entering convictions did not qualify as predicate felonies. We
affirm.
As Sales admits, his claim that the application of the
ACCA violated the principles of Booker is foreclosed by circuit
precedent. See United States v. Thompson, 421 F.3d 278, 286 (4th
Cir. 2005) (holding that fact of prior conviction is not subject to
Booker requirements; that convictions cannot be severed from their
essential components, including the integral facts such as the
statutory violation and date of offense; and that these facts are
inherent to convictions, not extraneous to them), petition for
cert. filed, Oct. 25, 2005 (No. 05-7266); United States v. Cheek,
415 F.3d 349, 350 (4th Cir. 2005) (holding that defendant’s Sixth
Amendment right to trial by a jury was not violated by district
court’s reliance on his prior convictions for purposes of
sentencing under the ACCA, even though convictions were neither
charged in indictment nor admitted), cert. denied, 126 S. Ct. 640(2005).
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Sales also contends that his North Carolina convictions
for breaking and entering did not constitute “violent felonies”
under 28 U.S.C.A. § 924(e)(2)(B) (West 2000 & Supp. 2005) because
they were not “punishable by imprisonment for a term exceeding one
year.” Although breaking and entering, a Class H felony, carries
a maximum term of 30 months’ imprisonment, Sales was only subject
to a term of 10-12 months, due to his criminal history and lack of
admitted aggravating factors. (J.A. at 96, 104-05); see North
Carolina v. Allen, 615 S.E.2d 256, 265-70 (N.C. 2005) (holding
that, after Blakely v. Washington, 542 U.S. 296 (2004), statutory
maximum is the maximum that this particular defendant can face in
light of his criminal history and the facts found by a jury or
admitted by the defendant).
However, as Sales admits, his argument is foreclosed by
this court’s decision in United States v. Harp, 406 F.3d 242, 246
(4th Cir. 2005) (holding 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”), cert. denied, 126 S. Ct. 297(2005). In addition, Harp considered and rejected the argument that
Allen required a different result.* Id. at 246-47. Thus, because
*
At the time Harp was decided, Allen was still pending on
appeal to the North Carolina Supreme Court. However, the Supreme
Court affirmed the holding of the North Carolina Court of Appeals,
which was the holding reviewed by this court. The North Carolina
Court of Appeals held that the portion of the state sentencing
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a sentence of over twelve months could be imposed on a defendant
convicted of breaking and entering, Sales’ prior convictions were
properly considered felonies.
Accordingly, we affirm Sales’ 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
guidelines that permitted judges to impose aggravated sentences
based on facts not found by a jury violated Blakely. North
Carolina v. Allen, 601 S.E.2d 299, 306 (N.C. App. 2004).
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