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 2001-12

United States v. McKeithan , 22 F. App'x 279 ( 2001 )


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  •                           UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,              
Plaintiff-Appellee,
v.                               No. 01-4443
BOBBY SHERRILL MCKEITHAN,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of North Carolina, at Raleigh.
W. Earl Britt, Senior District Judge.
(CR-00-141)
Submitted: November 15, 2001
Decided: December 13, 2001
Before NIEMEYER, KING, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
Thomas P. McNamara, Federal Public Defender, G. Alan DuBois,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant. John Stuart Bruce, United States Attorney, Anne M.
Hayes, Assistant United States Attorney, J. Frank Bradsher, Assistant
United States Attorney, Raleigh, North Carolina, for Appellee.
2                   UNITED STATES v. MCKEITHAN
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Bobby Sherrill McKeithan pled guilty to a criminal information
charging him with possession of a firearm after having been convicted
of a felony, in violation of
    18 U.S.C.A. § 922
    (g) (West 2000). The
district court determined that McKeithan was an armed career crimi-
nal, pursuant to
    18 U.S.C.A. § 924
    (e) (West 2000), and sentenced him
to a 180-month term of imprisonment. McKeithan appeals his sen-
tence.
McKeithan contends that his sentence as an armed career criminal
under § 924(e) is unconstitutional under the Supreme Court’s decision
in Apprendi v. New Jersey,
    530 U.S. 466
     (2000). We conclude, how-
ever, that Apprendi does not apply to McKeithan’s enhanced sentence
under § 924(e) because it is based on his prior convictions, a factor
that was specifically excluded from the holding of Apprendi. Contrary
to McKeithan’s assertions, 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 sentencing enhance-
ments, 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,
    121 S. Ct. 2616
     (2001); United States v. Dorris,
    236 F.3d 582
    , 586-88 (10th Cir. 2000) (same), cert. denied,
    121 S. Ct. 1635
     (2001); United States v. Mack,
    229 F.3d 226
    , 235 n.12 (3d Cir.
2000) (same), cert. denied,
    121 S. Ct. 2015
     (2001).
We therefore affirm McKeithan’s conviction and sentence. We dis-
pense 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