UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4301
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
DARRICK T. FERGUSON,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Claude M. Hilton, Chief
District Judge. (CR-03-310)
Submitted: July 29, 2005 Decided: August 19, 2005
Before LUTTIG, MOTZ, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Paul P. Vangellow, PAUL P. VANGELLOW, P.C., Falls Church, Virginia,
for Appellant. Paul J. McNulty, United States Attorney,
Jonathan L. Fahey, Richard D. Cooke, Special Assistant United
States Attorneys, Alexandria, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Darrick T. Ferguson was convicted by a jury of conspiracy
to distribute 50 grams or more of cocaine base, in violation of 21
U.S.C. § 846 (2000), and possession with intent to distribute 5
grams or more of cocaine base, in violation of 21 U.S.C.
§ 841(a)(1) (2000). He was sentenced to 360 months of imprisonment
and ten years of supervised release. On appeal Ferguson,
challenging only his sentence, claims that he was improperly
sentenced under the Federal Sentencing Guidelines in light of
Blakely v. Washington, 542 U.S. 296 (2004), and United States v.
Booker, 125 S. Ct. 738 (2005).
The district court found that the career offender
enhancement, U.S. Sentencing Guidelines Manual § 4B1.1(b)(A)
(2003), applied to Ferguson. Although the district court resolved
and denied objections to the quantity of drugs attributed and
possession of a firearm, and sustained an objection to an
obstruction of justice enhancement, the career offender designation
determined the applicable offense level and resulting guideline
range. Because the maximum penalty for Ferguson’s offense was life
imprisonment, see 21 U.S.C. § 841, the applicable offense level was
37. USSG § 4B1.1(b)(A). Under the career offender guideline, the
criminal history category is VI, resulting in the guideline range
of 360 months to life imprisonment. USSG Ch.5, Pt. A. Ferguson
received a 360-month sentence. On appeal, Ferguson does not
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contest that he qualified for career offender status; instead, he
broadly challenges the designation on Booker grounds.1
In United States v. Harp, 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. 406 F.3d 242, 247 (4th Cir. 2005). In Almendarez-
Torres v. United 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 subsequently clarified that Almendarez-Torres was
not overruled by Apprendi, and remains the law. See United States
v. Sterling, 283 F.3d 216, 220 (4th Cir. 2002); see generally
Shepard v. United States, 125 S. Ct. 1254 (2005) (discussing
documents that a sentencing court may consider in determining
whether a prior conviction is considered a violent felony). We
1
Ferguson’s brief contests that the district court determined
the offense level based on facts not found by the jury, but does
not specifically attack the propriety of the career offender
designation.
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therefore conclude that the district court did not err in
designating Ferguson as a career offender and Ferguson’s sentence
did not violate the Sixth Amendment.
We therefore affirm Ferguson’s convictions and sentence.2
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
2
Ferguson does not contest his convictions.
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