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 2003-09

United States v. Joshua , 75 F. App'x 137 ( 2003 )


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  •                           UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,              
Plaintiff-Appellee,
v.                               No. 03-4129
JERRY GLENN JOSHUA,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of Virginia, at Norfolk.
Rebecca Beach Smith, District Judge.
(CR-02-28)
Submitted: July 31, 2003
Decided: September 4, 2003
Before LUTTIG and KING, Circuit Judges, and
HAMILTON, Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
COUNSEL
Frank W. Dunham, Jr., Federal Public Defender, Larry W. Shelton,
Supervisory Assistant Federal Public Defender, Norfolk, Virginia, for
Appellant. Paul J. McNulty, United States Attorney, James Ashford
Metcalfe, Assistant United States Attorney, Norfolk, Virginia, for
Appellee.
2                      UNITED STATES v. JOSHUA
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Jerry Glenn Joshua, convicted by a jury of being a felon in posses-
sion of a firearm, appeals his 324-month custodial sentence. Joshua
first argues his sentencing under the Armed Career Criminal Act of
1984, as amended,
    18 U.S.C. § 924
    (e) (2000) ("ACCA"), violated
Apprendi v. New Jersey,
    530 U.S. 466
     (2000), as the predicate prior
felony convictions were not listed in his indictment. Second, Joshua
argues the district court erred in calculating his sentence by including
ninety grams of crack possessed by a co-conspirator as part of his rel-
evant conduct. Joshua did not assert either of these claims in the dis-
trict court. For the following reasons, we find no plain error and
affirm.
Joshua’s initial assignment of error is easily resolved. With respect
to Joshua’s contention that Apprendi overruled Almendarez-Torres v.
United States,
    523 U.S. 224
     (1998) (noting prior convictions need not
be an element of an offense in order to trigger enhanced penalties),
this Court has previously considered and rejected this claim. See
United States v. Sterling,
    283 F.3d 216
    , 220 (4th Cir.), cert. denied,
    536 U.S. 931
     (2002). Accordingly, we find no error, plain or other-
wise, in Joshua’s sentencing under § 924(e).
Joshua’s objection to the district court’s attribution of crack pos-
sessed by a co-conspirator likewise fails to amount to plain error. In
calculating Joshua’s offense level, the district court adopted, without
objection, the finding in Joshua’s pre-sentence report ("PSR") that
Joshua was responsible for ninety grams of crack produced by an
alleged co-conspirator.
When a defendant fails to continue at sentencing a prior written
objection to his PSR, review, if any, is limited to plain error. See
United States v. Kingsley,
    241 F.3d 828
    , 835 (6th Cir. 2001); United
UNITED STATES v. JOSHUA                       3
States v. Scanga,
    225 F.3d 780
    , 783 (7th Cir. 2000); United States v.
Caba,
    955 F.2d 182
    , 187 (2d Cir. 1992). Joshua’s attorney initially
objected to the attribution, and Joshua’s PSR indicated the objection
must be resolved by factual findings at sentencing. However, at sen-
tencing, defense counsel, without conceding Joshua’s involvement in
a conspiracy, stated that "if the court has heard the evidence and made
a determination based upon the government’s position that my client
was engaged in drug distribution for which he was acquitted by the
jury—we would submit that he was not engaged in drug distribution
—if the court had determined otherwise, there is no need for any evi-
dentiary determination today." (JA 169-70).*
In light of Joshua’s counsel’s concession, we find no plain error in
the attribution of the ninety grams of crack cocaine in question. There
was sufficient, uncontroverted testimony supporting a conclusion that
a tacit arrangement existed between Joshua and his co-conspirator by
which crack supplied by the co-conspirator was distributed to custom-
ers brought by Joshua to Joshua’s sister’s house. In light of this
uncontroverted evidence, we find no plain error warranting our cor-
rection. See United States v. Cotton,
    535 U.S. 625
    , 633 (2002).
Accordingly, we affirm Joshua’s sentence. We dispense with oral
argument because the facts and legal contentions are adequately pre-
sented in the materials before the court and argument would not aid
the decisional process.
AFFIRMED
*We also note the following exchange:
THE COURT:           We are not into a drug amount determina-
tion, because you are not contesting that.
MR. SHELTON:        That’s correct.
(JA 193-94).