United States v. McDougald , 164 F. App'x 450 ( 2006 )


Menu:
  •                                UNPUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    No. 04-5026
    UNITED STATES OF AMERICA,
    Plaintiff - Appellee,
    versus
    CARL ANTHONY MCDOUGALD,
    Defendant - Appellant.
    Appeal from the United States District Court for the Eastern
    District of North Carolina, at Raleigh. James C. Fox, Senior
    District Judge. (CR-04-24)
    Submitted:   January 4, 2006                 Decided:   February 7, 2006
    Before WILKINSON, GREGORY, and DUNCAN, Circuit Judges.
    Affirmed by unpublished per curiam opinion.
    Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon,
    Assistant Federal Public Defender, Raleigh, North Carolina, for
    Appellant.   Frank D. Whitney, United States Attorney, Anne M.
    Hayes, Christine Witcover Dean, Assistant United States Attorneys,
    Raleigh, North Carolina, for Appellee.
    Unpublished opinions are not binding precedent in this circuit.
    See Local Rule 36(c).
    PER CURIAM:
    Carl Anthony McDougald pled guilty to being a felon in
    possession of a weapon in violation of 
    18 U.S.C. § 922
    (g) (2000).
    McDougald was sentenced to the statutory mandatory minimum term as
    an armed career criminal, under 
    18 U.S.C.A. § 924
    (e)(1) (West Supp.
    2005), to one-hundred-eighty months of imprisonment.    On appeal,
    McDougald alleges that he should be resentenced in light of the
    Supreme Court’s opinion in United States v. Booker, 
    543 U.S. 220
    ,
    
    125 S. Ct. 738
     (2005).   For the reasons that follow, we affirm.
    McDougald challenges the district court’s determination
    that he is an armed career criminal, citing Blakely v. Washington,
    
    542 U.S. 296
     (2004), and Booker as support for this argument.
    Because McDougald preserved this issue by timely objecting to the
    presentence report based upon Blakely, our review is de novo.   See
    United States v. Mackins, 
    315 F.3d 399
    , 405 (4th Cir. 2003) (“If a
    defendant has made a timely and sufficient Apprendi[*] sentencing
    objection in the trial court, and so preserved his objection, we
    review de novo.”).   When a defendant preserves a Sixth Amendment
    error, “we must reverse unless we find this constitutional error
    harmless beyond a reasonable doubt, with the Government bearing the
    burden of proving harmlessness.” 
    Id.
     (citations omitted); see also
    United States v. White, 
    405 F.3d 208
    , 223 (4th Cir.) (discussing
    difference in burden of proving that error affected substantial
    *
    Apprendi v. New Jersey, 
    530 U.S. 466
     (2000).
    - 2 -
    rights under harmless error standard in Fed. R. App. P. 52(a), and
    plain error standard in Fed. R. App. P. 52(b)), cert. denied, 
    126 S. Ct. 668
     (2005).
    In Booker, 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.           United States v. Hughes, 
    401 F.3d 540
    , 546
    (4th    Cir.    2005).         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.
    McDougald’s      claim      that    the   district      court     erred    in
    sentencing him as an armed career criminal is foreclosed by United
    States v. Thompson, 
    421 F.3d 278
     (4th Cir.), petition for cert.
    filed   (Oct.       25,    2005)    (No.    05-7266),     in   which       we    held   that
    sentencing courts may rely on prior convictions to invoke the
    enhancement provided by § 924(e)(1), even if the prior convictions
    were not charged in the indictment or found by a jury, so long as
    - 3 -
    no facts extraneous to the fact of conviction need be decided.             Id.
    at 282-83.         McDougald does not dispute the fact of the prior
    convictions or identify any “extraneous facts” that are relevant to
    this case.      We therefore conclude that no constitutional error
    occurred in this case.
    McDougald   also   challenges   the    continued   validity    of
    Almendarez-Torres v. United States, 
    523 U.S. 224
    , 244 (1998), in
    light   of   the    Supreme   Court’s   decisions   in   Apprendi,   and   its
    progeny.     The argument is foreclosed by Circuit precedent.              See
    United States v. Cheek, 
    415 F.3d 349
     (4th Cir.), cert. denied, 
    126 S. Ct. 640
     (2005); United States v. Sterling, 
    283 F.3d 216
    , 220
    (4th Cir. 2002).
    Finally, McDougald alleges that the district court erred
    by considering the Sentencing Guidelines as mandatory.           This claim
    fails because, as discussed above, his sentence was not enhanced as
    a result of the Guidelines.         He was sentenced to the statutory
    mandatory minimum as an armed career criminal.             Furthermore, the
    district court announced an identical alternative sentence in the
    event the Guidelines were found to be unconstitutional.
    Accordingly, we affirm McDougald’s sentence. 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
    - 4 -