United States v. Richardson

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 04-4667

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

JOHN MARK RICHARDSON,

Defendant - Appellant.

Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. Frank W. Bullock, Jr.,
District Judge. (CR-04-90)

Submitted: July 27, 2005 Decided: August 15, 2005

Before MOTZ and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.

Affirmed by unpublished per curiam opinion.

Louis C. Allen, III, Federal Public Defender, William S. Trivette,
Assistant Federal Public Defender, Greensboro, North Carolina, for
Appellant. Anna Mills Wagoner, United States Attorney, Lisa B.
Boggs, Assistant United States Attorney, Greensboro, North
Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

John Mark Richardson pled guilty to being a felon in

possession of a weapon under 18 U.S.C. § 922(g)(1) (2000). Both

his plea agreement and plea hearing reveal that Richardson was

informed that the Government considered him an armed career

criminal under 18 U.S.C.A. § 924(e) (West Supp. 2005) and that his

minimum sentence under the statute was fifteen years of

imprisonment.

Counsel conceded at Richardson’s sentencing hearing that

the designation was proper but argued that the sentencing

enhancement was invalid in light of the Supreme Court’s decision in

Blakely v. Washington, 542 U.S. 296 (2004). The district court

sentenced Richardson to 180 months of imprisonment, the mandatory

minimum under § 924(e). Since Richardson’s appeal, the Supreme

Court has extended its decision in Blakely to federal criminal

defendants. See United States v. Booker, 125 S. Ct. 738 (2005)

(striking down the mandatory provisions of the Federal Sentencing

Guidelines). On appeal, Richardson argues (1) that the sentence is

invalid in light of Blakely and (2) that his criminal history, as

calculated in his presentence report, is also invalid. For the

reasons that follow, we affirm.

Richardson has preserved his Blakely arguments for

appellate review. He first alleges that his armed career criminal

designation does not survive Blakely. Richardson, however, does

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not deny the fact of his five prior North Carolina convictions for

“Felonious Robbery With a Dangerous Weapon” or that such

convictions are a proper predicate for the armed career criminal

enhancement he received. Because Richardson’s fifteen-year

sentence was mandated by statute, the then-mandatory sentencing

guidelines did not affect his sentence. Accordingly, we find there

is no error under Booker. See United States v. Robinson, 404 F.3d

850, 862 (4th Cir. 2005) (“Booker did nothing to alter the rule

that judges cannot depart below a statutorily provided minimum

sentence.”). Moreover, we recently rejected the argument that a

defendant’s Sixth Amendment rights are violated under Booker when

his sentence is statutorily enhanced under § 924(e). See United

States v. Cheek, __ F.3d __, 2005 WL 1669398 (4th Cir. July 19,

2005) (No. 04-4445).

Second, Richardson alleges that his criminal history, as

calculated in his presentence report, was erroneous in light of

Blakely. This claim fails, however, as Richardson’s sentence was

not increased based on his criminal history. Rather, Richardson

was sentenced to the mandatory minimum sentence under § 924(e).

Thus, we affirm Richardson’s conviction and sentence. 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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