United States v. Walker , 149 F. App'x 189 ( 2005 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4234
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JACQUES WALKER,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. Catherine C. Blake, District Judge. (CR-
03-238-CCB)
Submitted: August 19, 2005 Decided: September 23, 2005
Before TRAXLER and KING, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
David W. Lease, SMITH, LEASE & GOLDSTEIN, L.L.C., Rockville,
Maryland, for Appellant. Thomas M. DiBiagio, United States
Attorney, Michael J. Leotta, Assistant United States Attorney,
Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Jacques Walker appeals his total 360-month sentence
following a jury trial for being a felon in possession of a firearm
in violation of 18 U.S.C. § 922(g), possession with intent to
distribute marijuana in violation of 21 U.S.C. § 841(a), and
possession of a firearm in furtherance of a drug trafficking crime
in violation of 18 U.S.C. § 924(c). We affirm his convictions and
sentence.
Walker challenges his convictions on several grounds and
challenges his sentence under Blakely v. Washington, 542 U.S. 296(2004). He argues: (1) the district court erred in denying his
motion to suppress evidence; (2) insufficiency of the evidence
regarding the possession with intent to distribute marijuana count;
(3) insufficiency of the evidence regarding the § 924(c) count; (4)
the district court erred in giving a flight instruction to the jury
when there was no evidence of Walker’s flight; (5) the district
court improperly gave examples in a jury instruction of how a
firearm may be used in furtherance of a drug trafficking crime
under § 924(c) when some examples were not supported by the
evidence; (6) Congress lacked the constitutional authority to enact
the felon in possession statute, § 922(g), under the Commerce
Clause; and (7) his sentence violated the Sixth Amendment under
Blakely because it was enhanced based on judicial findings of prior
convictions and because the guidelines are unconstitutional. After
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United States v. Booker, 125 S. Ct. 738 (2005), issued, Walker
filed two letters under Fed. R. App. P. 28(j) asserting his
sentence was in violation of Booker and later asserting his
enhancements for prior convictions were in violation of United
States v. Shepard, 125 S. Ct. 1254 (2005), and United States v.
Washington, 404 F.3d 834 (4th Cir. 2005). The Government rejects
Walker’s challenges to his convictions and sentence. Regarding
Walker’s Blakely and Booker arguments, the Government argues the
district court did not plainly err in sentencing Walker because the
only judicial enhancements were based upon prior convictions.
We reject Walker’s challenges to his convictions. First,
in looking at the totality of the circumstances, Illinois v. Gates,
462 U.S. 213, 230-32 (1983), we find the arresting officers had
probable cause to believe Walker had just committed a crime. Cf.
United States v. Al-Talib, 55 F.3d 923, 931 (4th Cir. 1995) (ruling
that police surveillance will support a finding of probable cause
where officers observe conduct that is consistent with a drug
transaction). Therefore, the evidence seized in a search of Walker
incident to his arrest and Walker’s spontaneous, voluntary
statement regarding a firearm he possessed were admissible under
the Fourth Amendment.
Next, taking the evidence in the light most favorable to
the Government, we find substantial evidence supported the jury
verdicts both on the possession of marijuana with intent to
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distribute and on the possession of firearm in furtherance of a
drug trafficking crime counts. See Glasser v. United States, 315
U.S. 60, 80 (1942) (stating standard of review). With regard to
the intent to distribute element of a § 841(a) violation, we note
evidence revealed officers witnessed Walker engaging in acts
consistent with a street-level drug transaction immediately prior
to Walker’s arrest. Regarding the § 924(c) conviction, we find
there was significant evidence, substantially more than mere
presence of the firearm at the scene, to support the jury’s verdict
that Walker possessed a firearm in furtherance of a drug
trafficking crime. See United States v. Lomax, 293 F.3d 701, 705
(4th Cir. 2002).
Further, we find that the district court properly gave a
flight instruction to the jury because there was evidence of
Walker’s attempt to elude police once he believed police were
present. Cf. United States v. Obi, 239 F.3d 662, 665 (4th Cir.
2001) (recognizing that consciousness of guilt may be inferred from
evidence of flight).
We further find the district court’s jury instruction
regarding the § 924(c) count, which in part listed examples of how
a firearm might be used in furtherance of a drug trafficking crime,
was proper. United States v. Lomax, 293 F.3d 701, 705 (4th Cir.
2002).
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We also reject Walker’s challenge to his felon in
possession conviction on the ground that Congress lacked the
authority to enact the statute under the Commerce Clause. It is
well-established that the statute, which expressly requires an
interstate commerce nexus, is a valid congressional enactment under
the Commerce Clause. United States v. Quarles, 330 F.3d 650, 651
n.2 (4th Cir.), cert. denied, 540 U.S. 977 (2003); United States v.
Gallimore, 247 F.3d 134, 138 (4th Cir. 2001); United States v.
Nathan, 202 F.3d 230, 234 (4th Cir. 2000).
Finally, we review Walker’s challenges to his sentence.
Because the issues under Blakely and Booker are raised for the
first time on appeal, review is for plain error. See United
States v. Hughes, 401 F.3d 540, 547 (4th Cir. 2005). We find no
Sixth Amendment error in Walker’s sentencing. Walker’s sentence
was enhanced under the career offender guidelines, USSG § 4B1.1,
based solely upon his prior convictions. In both Blakely and
Booker, the Supreme Court reaffirmed its holding in Almendarez-
Torres v. United States, 523 U.S. 224, 244 (1998), that the fact of
a prior conviction need not be proven to a jury beyond a reasonable
doubt. Booker, 125 S. Ct. at 756; Blakely, 542 U.S. at ___, 124 S.
Ct. at 2536. Walker does not dispute the fact of his prior
convictions. We conclude the predicates for designating Walker as
a career offender were satisfied because he has two prior
convictions that on their face qualify as “controlled substance
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offenses” under USSG § 4B1.1. See USSG § 4B1.2 (defining predicate
offenses).
Next, we turn to whether the district court’s mandatory
application of the guidelines constituted plain error. We find
Walker has not established that the error in treating the
guidelines as mandatory affected his substantial rights. See
United States v. White, 405 F.3d 208, 215-25 (4th Cir. 2005). For
these reasons, we affirm Walker’s convictions 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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