United States v. Galloway , 149 F. App'x 222 ( 2005 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4464
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JOHN CLARENCE GALLOWAY,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. James A. Beaty, Jr.,
District Judge. (CR-03-457)
Submitted: August 24, 2005 Decided: September 29, 2005
Before WILLIAMS, MICHAEL, and TRAXLER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Louis C. Allen, III, Federal Public Defender, Eric D. Placke,
Assistant Federal Public Defender, Greensboro, North Carolina, for
Appellant. Anna Mills Wagoner, United States Attorney, Lisa B.
Boggs, 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Unpublished opinions are not binding precedent in this circuit.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:
John Clarence Galloway pled guilty to possession of a
firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)
(2000). He was sentenced to eighty-seven months of imprisonment,
followed by three years of supervised release. Galloway appeals
his sentence. We affirm.
Galloway argues that the enhancements to his offense
level based on prior felony convictions for controlled substances
pursuant to U.S. Sentencing Guidelines Manual § 2K2.1(a)(2) (2003),
and the calculation of his criminal history category points based
on several prior convictions violated the Sixth Amendment because
the enhancements were based on facts that were not contained in the
indictment, found by the jury, or admitted by Galloway.
Because Galloway did not object to his sentence in the
district court based on Blakely v. Washington, 542 U.S. 296 (2004),
this court’s review is for plain error. Fed. R. Crim. P. 52(b);
United States v. Hughes, 401 F.3d 540, 547 (4th Cir. 2005). To
demonstrate plain error, Galloway must establish that error
occurred, that it was plain, and that it affected his substantial
rights. Hughes, 401 F.3d at 547-48. If a defendant establishes
these requirements, the court’s “discretion is appropriately
exercised only when failure to do so would result in a miscarriage
of justice, such as when the defendant is actually innocent or the
error seriously affects the fairness, integrity or public
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reputation of judicial proceedings.” Id. at 555 (internal
quotation marks and citation omitted).
In United States v. Booker, 125 S. Ct. 738 (2005), the
Supreme Court held that the mandatory manner in which the federal
sentencing guidelines required courts to impose sentencing
enhancements based on facts found by the court by a preponderance
of the evidence violated the Sixth Amendment. 125 S. Ct. at 746,
750. The Court remedied the constitutional violation by severing
two statutory provisions, 18 U.S.C.A. §§ 3553(b)(1), 3742(e) (West
2000 & Supp. 2005), thereby making the guidelines advisory.
Hughes, 401 F.3d at 546.
After Booker, courts must calculate the appropriate
guideline range, consider the range in conjunction with other
relevant factors under the guidelines and 18 U.S.C.A. § 3553(a)
(West 2000 & Supp. 2005), and impose a sentence. If a court
imposes a sentence outside the guideline range, the district court
must state its reasons for doing so. Id.The district court may enhance a sentence based on the
fact of a prior conviction. See Almendarez-Torres v. United
States, 523 U.S. 224, 244 (1998). However, when the sentencing
court looks “beyond the charging document, the terms of a plea
agreement, the plea colloquy, the statutory definition, or any
explicit finding of the trial court to determine a fact about a
prior conviction,” then the finding has gone too far afield from
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the prior judicial record and falls outside the Almendarez-Torres
exception to the Booker holding. United States v. Collins, 412
F.3d 515, 521-22 (4th Cir. 2005). Galloway was previously
convicted of three separate prior felonies: sale and delivery of
cocaine and possession with intent to sell cocaine on February 3,
1997; possession with intent to sell and deliver cocaine on
March 20, 2002; and possession of cocaine on April 17, 2002. The
district court was not required to make any factual findings
concerning these convictions to conclude that they were controlled
substance offenses. We therefore conclude the enhancement of
Galloway’s offense level under USSG § 2K2.1(a)(2) did not violate
the Sixth Amendment.
Galloway also challenges the continued vitality of
Almendarez-Torres in light of the Supreme Court’s decisions in
Apprendi v. New Jersey, 530 U.S. 466 (2000), and its progeny. The
argument is foreclosed by Circuit precedent. See United States v.
Cheek, 415 F.3d 349, (4th Cir. 2005); United States v.
Sterling, 283 F.3d 216, 220 (4th Cir. 2002).
Accordingly, we affirm the district court’s judgment. 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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