UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4096
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
NORVELL BLYTHE BAKER,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. James A. Beaty, Jr.,
District Judge. (CR-04-254)
Submitted: June 27, 2005 Decided: July 26, 2005
Before NIEMEYER, GREGORY, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Louis C. Allen III, Federal Public Defender, Gregory Davis,
Assistant Federal Public Defender, Greensboro, North Carolina, for
Appellant. Anna Mills Wagoner, United States Attorney, Sandra J.
Hairston, L. Patrick Auld, Assistant United States Attorneys,
Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Norvell Blythe Baker appeals his 325 month sentence
resulting from his conviction for possession with intent to
distribute cocaine base in violation of 21 U.S.C. § 841 (2000), and
possession of a firearm during drug trafficking in violation of 18
U.S.C. § 924(c)(1)(A)(i) (2000). Finding no reversible error, we
affirm.
Baker pled guilty and does not challenge his conviction.
Baker claims that the district court violated his Sixth Amendment
rights by enhancing his sentence by virtue of a designation of
career offender under U.S. Sentencing Guideline Manual § 4B1.1
(2004), on facts not alleged in the indictment, not admitted by
Baker, and not found by a jury beyond a reasonable doubt in
violation United States v. Booker, 125 S. Ct. 738 (2005).
In order for Baker to be designated a career offender,
the Government had to establish (1) that Baker was at least 18 at
the time of the instant offense, (2) that the instant offense is a
felony that is either a “crime of violence” or a “controlled
substance offense,” and (3) that Baker had at least two prior
felony convictions for either a “crime of violence” or a
“controlled substance offense.” USSG § 4B1.1(a); United States v.
Harp, 406 F.3d 242, 245 (4th Cir. 2005).
Baker does not contest that he was thirty-two years old
at the time of the instant offense, satisfying the first
- 2 -
requirement of a career offender under USSG § 4B1.1(a). A
controlled substance offense is: “an offense under federal or
state law, punishable by imprisonment for a term exceeding one
year, that prohibits the . . . distribution, or dispensing of a
controlled substance . . . or the possession of a controlled
substance . . . with intent to manufacture, import, export,
distribute, or dispense.” USSG § 4B1.2(b). In the instant
offense, Baker pled guilty to possession of fifty grams or more of
cocaine base with intent to distribute in violation of 21 U.S.C.
§ 841(a)(1), (b)(1)(A) (2000), a felony that carries a minimum
sentence of ten years in prison. As the indictment states, cocaine
base is a controlled substance within the meaning of 21 U.S.C.
§ 812 (2000). Baker pled guilty to a controlled substance offense
punishable by imprisonment exceeding one year, satisfying the
second requirement of USSG § 4B1.1(a).
Under USSG § 4B1.2(a)(2), a “crime of violence” includes
any offense “punishable by imprisonment exceeding one year” that is
“a burglary of a dwelling.” This Court has held that “burglary of
a dwelling constitutes a crime of violence.” United States v.
Harrison, 58 F.3d 115, 119 (4th Cir. 1995). In both 1993 and 2001,
Baker was convicted of felony breaking and entering of a dwelling
and larceny. For each conviction he was sentenced to fifteen
months’ imprisonment. Id. Baker does not dispute any facts
related to his prior convictions. As Baker had two prior felony
- 3 -
convictions for crimes of violence, he satisfied the third
requirement of USSG § 4B1.1(a).
Baker argues that the finding of a crime of violence
constituted impermissible judicial fact-finding, but Booker
specifically excepted prior convictions from its requirement that
facts be admitted or proven to a jury beyond a reasonable doubt.
Booker, 125 S. Ct. at 756. Baker’s prior convictions qualified as
crimes of violence as a matter of law; this conclusion required no
further judicial fact-finding. See United States v. Ward, 171 F.3d
188, 192 (4th Cir. 1999) (court’s inquiry into career offender
status generally limited to “the fact of conviction and the
statutory elements of the prior offense”). The district court did
not err in its ruling that Baker qualified for the career offender
sentence enhancement.
Baker claims that even if he qualified as a career
offender, the district court violated his Sixth Amendment rights
because his prior convictions were not admitted by him or found by
a jury beyond a reasonable doubt. In United States v. Harp, 406
F.3d 242 (4th Cir. 2005), this court, applying the plain error
standard, found that even if the district court committed plain
error when it determined that defendant was a career offender
without the elements of that designation having been charged in an
indictment, this court would not exercise its discretion to correct
that error. Harp, 406 F.3d at 247. In Almendarez-Torres v. United
- 4 -
States, 523 U.S. 224 (1998), the Supreme Court held that “the
government need not allege in its indictment and need not prove
beyond reasonable doubt that a defendant had prior convictions for
a district court to use those convictions for purposes of enhancing
a sentence.” Although the opinion in Apprendi v. New Jersey, 530
U.S. 466 (2000), expressed some uncertainty regarding the future
vitality of Almendarez-Torres, this court has concluded that
Almendarez-Torres was not overruled by Apprendi. See United
States v. Sterling, 283 F.3d 216, 220 (4th Cir. 2002).
Baker finally maintains that even if the district court
did not err in designating him a career offender, it erred in
failing to treat the guidelines as advisory. Because Baker did not
raise this issue in the district court, we review for plain error.
Under this standard, although Baker is correct that the district
court committed error in treating the guidelines as mandatory,* see
Hughes, 401 F.3d at 547-48, he is not entitled to relief. This
court recently held that in a plain error context, the error of
sentencing under the mandatory guidelines regime did not, in the
absence of a Sixth Amendment violation, warrant a presumption of
prejudice nor was it a structural error. United States v. White,
405 F.3d 208, 224 (4th Cir. 2005). As it is apparent that the
error did not affect the court’s ultimate determination of Baker’s
*
Just as we noted in Hughes, 401 F.3d at 545 n.4, “[w]e of
course offer no criticism of the district judge, who followed the
law and procedure in effect at the time” of Baker’s sentencing.
- 5 -
sentence, Baker cannot satisfy the prejudice requirement of the
plain error standard.
Moreover, even if Baker had preserved this issue for
appellate review, the district court’s application of the
guidelines as mandatory was clearly harmless. The harmless error
standard permits an error at sentencing to be disregarded if the
reviewing court is certain that any such error “did not affect the
district court’s selection of the sentence imposed.” Williams v.
United States, 503 U.S. 193, 203 (1992). The district court
imposed an identical sentence under both the mandatory federal
sentencing guidelines and, in the alternative, based upon its own
judicial discretion if the federal guidelines were later found not
to be mandatory. Because the district court imposed an alternative
discretionary sentence pursuant to 18 U.S.C.A. § 3553 (West 2000 &
Supp. 2004), that was identical to the guideline sentence, this
court could confidently conclude that the error inherent in the
application of the guidelines as mandatory did not affect the
district court’s ultimate determination of the sentence. Thus,
even if Baker had preserved this issue for appellate review, it
would be unnecessary to vacate his sentence and remand for
resentencing since he would, according to the sentencing court,
receive the same sentence even applying the guidelines as advisory.
Accordingly, we affirm Baker’s conviction and sentence.
We dispense with oral argument because the facts and legal
- 6 -
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED
- 7 -