United States v. Udonkang , 153 F. App'x 162 ( 2005 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4172
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ESIEN UDONKANG,
Defendant - Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Bluefield. David A. Faber, Chief
District Judge. (CR-04-139)
Submitted: September 30, 2005 Decided: November 2, 2005
Before NIEMEYER and MICHAEL, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Mary Lou Newberger, Federal Public Defender, Jonathan D. Byrne,
Appellate Counsel, George H. Lancaster, Jr., Assistant Federal
Public Defender, Charleston, West Virginia, for Appellant. Kasey
Warner, United States Attorney, Edward J. Kornish, Special
Assistant United States Attorney, Charleston, West Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Esien Udonkang pled guilty to possession with intent to
distribute for remuneration a quantity of marijuana in violation of
21 U.S.C. § 841(a)(1) (2000). The district court adopted the
findings in the presentence report, which included a sentencing
range of 77 to 96 months, and sentenced Udonkang to 84 months of
imprisonment. Udonkang’s sentence exceeded the maximum term of
imprisonment for the amount of marijuana involved because of his
prior drug felony under 21 U.S.C.A. § 841(b)(1)(D) (West Supp.
2005). On appeal, Udonkang raises three issues, whether: (1) the
Government should have been barred from seeking his enhanced
sentence under § 841(b)(1)(D) because they failed to timely provide
him notice under 21 U.S.C. § 851 (2000); (2) § 851 is
unconstitutional because it increases his sentence and was not
contained in his indictment or proved to a jury beyond a reasonable
doubt; and (3) his sentence violates the Sixth Amendment. For the
reasons that follow, we affirm.
Udonkang’s first issue fails because the Government
served him with § 851 notice prior to the entry of his guilty plea.
With regard to timeliness, no more is required under the statute.
See 21 U.S.C. § 851(a)(1).
Next, Udonkang alleges that § 851 is unconstitutional
because it increased his sentence without a jury finding or
admission by him. This claim fails, however, because the prior
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conviction exception discussed in Almendarez-Torres v. United
States, 523 U.S. 224 (1998), was recently reaffirmed by the Supreme
Court. See United States v. Booker, 125 S. Ct. 738, 756 (2005)
(“Any fact (other than a prior conviction) which is necessary to
support a sentence exceeding the maximum authorized by the facts
established by a plea of guilty or a jury verdict must be admitted
by the defendant or proved to a jury beyond a reasonable doubt.”).
The record clearly reflects that Udonkang had a prior West Virginia
felony for “Possession With Intent to Manufacture and Deliver a
Controlled Substance, to wit: Cocaine.” (J.A. 9-10).
Finally, Udonkang alleges that the district court erred
because it sentenced him under the mandatory guideline scheme that
existed prior to the Supreme Court’s decision in Booker. 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. Id. at
746, 750 (Stevens, J., opinion of the Court). The Court remedied
the constitutional violation by severing two statutory provisions,
18 U.S.C.A. § 3553(b)(1) (West Supp. 2005) (requiring sentencing
courts to impose a sentence within the applicable guideline range),
and 18 U.S.C.A. § 3742(e) (West 2000 & Supp. 2005) (setting forth
appellate standards of review for guideline issues), thereby making
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the Guidelines advisory. Booker, 125 S. Ct. at 756-67 (Breyer, J.,
opinion of the Court).
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. United States v. Hughes, 401 F.3d
540, 546 (4th Cir. 2005). This remedial scheme applies to any
sentence imposed under the mandatory Guidelines, regardless of
whether the sentence violates the Sixth Amendment. Id. at 547
(citing Booker, 125 S. Ct. at 769 (Breyer, J., opinion of the
Court)).
This claim fails in the instant appeal, however, because
although Udonkang’s sentencing hearing occurred the day before
Booker issued, his criminal judgment was not entered until after
Booker. It is clear from the record that the district court
considered its new discretion under Booker and determined that it
would have given great weight to the Sentencing Guidelines and
imposed the same sentence. (J.A. 110 n.*).* Thus, the district
*
Although not raised by Udonkang, we note that the district
court considered the factors in 18 U.S.C.A. § 3553(a), as directed
by the Court in Booker, and that the sentence appears to be
“reasonable.” See Hughes, 401 F.3d at 546-47.
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court did not sentence, as Udonkang argues, under the mandatory
guidelines system that existed prior to Booker.
Accordingly, we affirm. 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
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