United States v. McKeithan

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT UNITED STATES OF AMERICA,  Plaintiff-Appellee, v.  No. 01-4443 BOBBY SHERRILL MCKEITHAN,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 Affirmed by unpublished per curiam opinion.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Frank Bradsher, Assistant United States Attorney, Raleigh, North Carolina, for Appellee. 2 UNITED STATES v. MCKEITHAN Unpublished opinions are not binding precedent in this circuit.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