UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4309
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ANTHONY POPE,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Peter J. Messitte, District Judge. (CR-
03-104)
Argued: May 27, 2005 Decided: June 24, 2005
Before GREGORY and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
ARGUED: Elita Ceta Amato, Washington, D.C., for Appellant. Timothy
B. Atkins, Assistant United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Greenbelt, Maryland, for Appellee. ON BRIEF:
Thomas M. DiBiagio, United States Attorney, Greenbelt, Maryland,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
On January 15, 2004, Anthony W. Pope (“Pope”) pleaded guilty
to one count of possession with intent to distribute 50 grams or
more of cocaine base, in violation of 21 U.S.C. § 841(a)(1), and
aiding and abetting, in violation of 18 U.S.C. § 2, pursuant to a
written plea agreement. On April 19, 2004, the district court
sentenced Pope to 262 months imprisonment followed by five years of
supervised release. On appeal, Pope objects to the district
court’s finding that he is a career offender and argues that the
district court erred in treating the sentencing guidelines as
mandatory.1 We hold that the district court did not err in finding
Pope to be a career offender and did not commit plain error that
actually prejudiced Pope in treating the sentencing guidelines as
mandatory. We thus affirm Pope’s conviction.
I.
Pursuant to Pope’s plea agreement, he agreed that he was
responsible for more than 150 grams but less than 500 grams of
cocaine base. He further agreed that his base level offense should
be increased by two levels for the possession of a dangerous
weapon. The Government agreed not to oppose a three level
1
Pope filed a motion to remand his case for resentencing after
he filed his initial appeal. We reserved judgment on that motion
until we ruled on the appeal.
2
reduction for acceptance of responsibility. The plea did not
contain an agreement as to Pope’s criminal history.
At sentencing, the district court found that Pope was a career
offender pursuant to U.S. Sentencing Guideline Manual § 4B1.1,
based upon his prior felony convictions for robbery with a deadly
weapon and unlawful possession with intent to distribute cocaine.
Pope’s counsel conceded that Pope had “two prior predicate
offenses. The one is robbery and the second one is for possession
with intent to distribute.” J.A. 21. Pope’s counsel then moved
for a downward departure arguing that categorizing Pope as a career
offender overrepresented his criminal history. The district court
judge rejected this argument, noting that Pope had “been involved
in crimes since he was 15 years old, reported[ly], involving
assaults, thefts, drug activities” and finding that Pope “is very
much in the heartland of the career offender.” Id. at 30-31. Pope
waived certain appellate rights in his plea agreement but reserved
the right to appeal the district court’s decision on whether he was
a career offender.
II.
We first address Pope’s argument that under United States v.
Booker, 125 S. Ct. 738 (2005), the district court erred by treating
the sentencing guidelines as mandatory in determining his
3
sentence.2 Because Pope did not raise this issue below, our review
is for plain error. To establish plain error, Pope must show that
an error occurred, that the error was plain, and that the error
affected his substantial rights. United States v. Olano, 507 U.S.
725, 732 (1993). Even if Pope makes this showing, we may only
correct the error if it “seriously affect[s] the fairness,
integrity or public reputation of judicial proceedings.” Id.
(internal citations omitted).
We recently addressed the proper analysis for evaluating a
defendant’s claim that the district court erred in failing to treat
the guidelines as advisory. In United States v. White, 405 F.3d
208 (4th Cir. 2005), we held with regard to a defendant whose
appeal was pending when Booker was decided, that it was error,
which was plain, for the district court to treat the guidelines as
mandatory. Id. at 217. However, to satisfy the third prong of
plain error analysis a defendant must show that he was actually
prejudiced. Id. at 223.
Pope has not met his burden of demonstrating that the error of
sentencing him under the mandatory guidelines regime affected the
outcome of the district court proceedings. The district court
judge made no statements at sentencing indicating that he wished to
2
Pope does not argue that the district court judge imposed a
sentence greater than the maximum authorized solely by the facts
that he admitted and thus does not claim a Sixth Amendment
violation under Booker.
4
sentence Pope below the guideline range but that the guidelines
prevented him from doing so. In addition, the district court judge
specifically noted after denying Pope’s motion for a downward
departure based on overrepresentation of criminal history that:
There is no indication that he has learned any lessons
about anything, quite candidly. He has had a life of
crime. Perhaps with his being out of circulation for an
extended period of time, he won’t come back to a life of
crime, but the community can’t take a chance on that
right now.
J.A. 31. The district court judge went on to give Pope a sentence
at the lower end of the guidelines range but did not give any
indication that this sentence was too harsh. Given these comments
at sentencing, it is apparent that the district court felt that
Pope’s sentence was entirely appropriate for him, especially
considering his criminal history. Thus, Pope cannot demonstrate
that he was actually prejudiced by the district court’s error.
Second, Pope challenges his career offender status. Pope
concedes that he has two prior qualifying convictions but argues
that the prior conviction exception laid out in Almendarez-Torres
v. United States, 523 U.S. 224 (1998), may no longer be good law.
This argument is foreclosed by the Supreme Court’s reaffirmation of
the Almendarez-Torres prior conviction exception in Booker. See
Booker, 125 S. Ct. at 756 (“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
5
a jury verdict must be admitted by the defendant or proved to a
jury beyond a reasonable doubt.”) (emphasis added).3
Likewise, the application of the prior conviction exception to
Pope does not raise any of the problems outlined in Shepard v.
United States, 125 S. Ct. 1254 (2005). In Shepard, the Supreme
Court instructed that Sixth Amendment protections apply to disputed
facts about a prior conviction. Id. at 1262-63. Because no facts
related to Pope’s prior convictions are disputed, the district
court judge’s application of the career offender designation to
Pope did not violate the Sixth Amendment. Cf. United States v.
Washington, 404 F.3d 834, 843 (4th Cir. 2005) (finding that
district court’s reliance on disputed facts about the defendant’s
prior conviction violated the defendant’s Sixth Amendment right to
trial by jury).
III.
For the foregoing reasons, we affirm Pope’s sentence and deny
his motion to remand.
AFFIRMED
3
While Justice Thomas’s concurrence in Shepard v. United
States, 125 S. Ct. 1254, 1263-64 (2005), expressed doubt on the
future viability of the exception, the exception is still good law.
6