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 2002-01

United States v. Johnson , 22 F. App'x 336 ( 2002 )


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  •                           UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,               
Plaintiff-Appellee,
v.                             No. 01-4410
DAVID JOHNSON,
Defendant-Appellant.

Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Marvin J. Garbis, District Judge.
(CR-00-115-MJG)
Submitted: December 20, 2001
Decided: January 3, 2002
Before LUTTIG, TRAXLER, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
James Wyda, Federal Public Defender, Beth M. Farber, Assistant
Federal Public Defender, Baltimore, Maryland, for Appellant.
Thomas M. DiBiagio, United States Attorney, A. David Copperthite,
Assistant United States Attorney, Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2                     UNITED STATES v. JOHNSON
OPINION
PER CURIAM:
David Johnson appeals his conviction and sentence for possession
of a firearm by a felon. On appeal, Johnson contends that the district
court committed plain error by failing to suppress evidence and that
he was improperly sentenced under the Armed Career Criminal Act
in light of Apprendi v. New Jersey,
    530 U.S. 466
     (2000). We affirm.
First, Johnson has waived any challenge to the seizure of evidence,
because he failed to move to suppress the evidence prior to trial with-
out just cause to excuse his failure. See United States v. Ricco,
    52 F.3d 58
    , 62 (4th Cir. 1995); Fed. R. Crim. P. 12(b)(3), (f). Second,
Apprendi does not apply to Johnson’s increased sentence under 18
U.S.C.A. § 924(e) (West 2000), because a § 924(e) enhancement is
based on prior convictions, a factor that was specifically excluded
from the holding of Apprendi. Contrary to Johnson’s contentions,
Apprendi expressly declined to revisit the holding of Almendarez-
Torres v. United States,
    523 U.S. 224
    , 235 (1998), that prior felony
convictions are merely traditional sentencing enhancements, rather
than elements of the offense. Apprendi, 530 U.S. at 488-90; see also
United States v. Skidmore,
    254 F.3d 635
    , 642 (7th Cir. 2001) (holding
that Apprendi does not affect enhanced sentence under § 924(e));
United States v. Thomas,
    242 F.3d 1028
    , 1035 (11th Cir.) (same),
cert. denied, ___ U.S. ___,
    69 U.S.L.W. 3808
     (U.S. June 29, 2001)
(No. 00-10221); United States v. Dorris,
    236 F.3d 582
    , 587-88 (10th
Cir. 2000) (same), cert. denied, ___ U.S. ___,
    69 U.S.L.W. 3672
    (U.S. Apr. 16, 2001) (No. 00-8937); United States v. Mack,
    229 F.3d 226
    , 235 n.12 (3d Cir. 2000) (same), cert. denied, ___ U.S. ___,
    69 U.S.L.W. 3739
     (U.S. May 21, 2001) (No. 00-9532).
Accordingly, we affirm Johnson’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 argu-
ment would not aid the decisional process.
AFFIRMED