United States v. Hawkins , 142 F. App'x 812 ( 2005 )

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                                                       United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT                  August 2, 2005
Charles R. Fulbruge III
Clerk
No. 04-31006
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ERIC WAYNE HAWKINS,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Middle District of Louisiana
USDC No. 3:03-CR-194-1
--------------------
Before SMITH, EMILIO M. GARZA and PRADO, Circuit Judges.
PER CURIAM:*
Eric Wayne Hawkins appeals his drug-related convictions and
sentences for violating

21 U.S.C. § 841

(a).   He argues that his
sentences violated United States v. Booker,

125 S. Ct. 738

(2005), that the district court erred in refusing to allow him to
recall a Government witness, that the district court erred in
enhancing his sentence based upon a prior 1993 state conviction
in which the state judge also served as a prosecutor, and that

21 U.S.C. § 841

(a), (b) are unconstitutional in light of Apprendi v.
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
No. 04-31006
-2-
New Jersey,

530 U.S. 466

 (2000).    As Hawkins concedes, his last
argument is foreclosed by United States v. Slaughter,

238 F.3d 580

 (5th Cir. 2000), but he nevertheless raises the issue to
preserve it for further review.
In violation of

21 U.S.C. § 841

(a), Hawkins was convicted of
one count of distributing 50 grams or more of cocaine base and a
substance containing a detectable amount of cocaine (Count 2 of
the indictment) and one count of distributing five grams or more
but less than 50 grams of cocaine base (Count 3 of the
indictment).    With respect to Count 2 of the indictment, he
received a mandatory life sentence under

21 U.S.C. § 841

(b)(1)(A)
because the Government had shown, pursuant to

21 U.S.C. § 851

(a),
that he had two prior convictions for felony drug offenses.     The
life sentence imposed was therefore not made pursuant to the
federal sentencing guidelines and, pursuant to Almendarez-Torres
v. United States,

523 U.S. 224

, 235 (1998), and Booker, 125
S. Ct. at 756, prior convictions are considered sentencing
factors that need not be proven to a jury or admitted by the
defendant.     Accordingly, there was no Sixth Amendment violation
with respect to Hawkins’s sentence for Count 2.
With respect to Count 3, it was error to determine Hawkins’s
base offense level based upon additional drug amounts that were
not proven to the jury or admitted by him.     Booker, 125 S. Ct. at
756.    The error was harmless, however, because Hawkins’s total
offense level was ultimately determined based upon the jury’s
No. 04-31006
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determination that he had distributed five or more but less than
50 grams of cocaine base and the district court’s determination
that he had two prior convictions for felony drug offenses,
which, pursuant to

21 U.S.C. § 841

(b)(1)(B), exposed him to a
maximum term of life imprisonment, and, pursuant to United States
Sentencing Guidelines § 4B1.1, made him a career offender and
subject to a base offense level of 37.    Because his sentence was
ultimately based upon his prior convictions, which, pursuant to
Almendarez-Torres, did not violate Booker, and a determination
that he was a career offender, which, pursuant to United States
v. Guevera,

408 F.3d 252

, 261 (5th Cir. 2005), did not violate
Booker, any error in calculating his original base offense level
based upon drug amounts not proven to the jury or admitted by
Hawkins was harmless.   See United States v. Akpan,

407 F.3d 360

,
377 (5th Cir. 2005); United States v. Pineiro, ___ F.3d ___,
No. 03-30437,

2005 WL 1189713

 at *2 (5th Cir. May 20, 2005).
Given that Hawkins had ample opportunity and time to impeach
the Government witness during his cross-examination of that
witness, he has not shown that the district court abused its
discretion in not allowing him to recall the witness in his case-
in-chief.   See United States v. James,

510 F.2d 546

, 551 (5th
Cir. 1975); United States v. Masat,

948 F.2d 923

, 933 (5th Cir.
1992).   Finally, Hawkins cannot challenge the 1993 state
conviction that was alleged in an information filed by the
Government pursuant to

21 U.S.C. § 851

(a) and used to enhance his
No. 04-31006
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federal sentence because the prior conviction occurred more than
five years before the date of the information filed by the
Government.   See

21 U.S.C. § 851