UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 03-4859
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JAMES MITCHELL MCCONNELL,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Lacy H. Thornburg,
District Judge. (CR-02-250-T; CR-03-139-T)
Submitted: August 31, 2005 Decided: September 21, 2005
Before KING, GREGORY, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Samuel J. Randall, IV, THE LAW OFFICE OF SAMUEL J. RANDALL, IV, PC,
Wilmington, North Carolina, for Appellant. Gretchen C. F. Shappert,
United States Attorney, Amy E. Ray, Assistant United States
Attorney, Charlotte, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
James Mitchell McConnell appeals from his 120-month
sentence entered pursuant to his guilty plea to bank robbery. On
appeal, he argues that the district court violated Blakely v.
Washington, 542 U.S. 296 (2004), and committed Sixth Amendment
error, when it enhanced his sentence under U.S. Sentencing
Guidelines Manual § 2B3.1(b)(2)(F) (2002), and determined that he
was a career offender under USSG § 4B1.1, based on factual findings
made only by a preponderance of the evidence. We affirm.
McConnell does not clearly challenge the fact that his
prior convictions satisfy the career offender requirements, nor
could he, as discussed below. In order for a defendant to be
designated a career offender, the Government must establish that
(1) the defendant was at least eighteen years old at the time of
the instant offense, (2) that the instant offense is a felony for
either a crime of violence or a controlled substance offense, and
(3) that the defendant has at least two prior felony convictions
for either a crime of violence or a controlled substance offense.
USSG § 4B1.1(a). The only “fact” that McConnell’s brief could be
construed as challenging is whether his prior convictions were for
crimes of violence.
The prior convictions at issue were for kidnapping and
common law robbery. Both are listed in the guidelines as “crime[s]
of violence.” USSG § 4B1.2, comment. (n.1). Thus, any claim that
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McConnell’s prior convictions were not for crimes of violence is
meritless.
McConnell contends, however, that the district court
plainly erred under Blakely in finding that the prior convictions
were crimes of violence, even in light of the guideline definition
and McConnell’s lack of objection. We squarely rejected an
identical claim in United States v. Harp, 406 F.3d 242, 247 (4th
Cir. 2005), holding that, where a defendant has no colorable
defense to the career offender designation, we will decline to
exercise our discretion to correct any Sixth Amendment error.
Accordingly, McConnell’s claim is without merit. See also United
States v. Collins, 412 F.3d 515, 522-23 & n.11 (4th Cir. 2005)
(finding no Sixth Amendment violation where district court did not
need to resolve any disputed facts).
Because McConnell was correctly categorized as a career
offender, his base offense level was determined by the statutory
maximum for his crime, rather than by his relevant conduct. See
USSG § 4B1.1(b). Thus, his USSG § 2B3.1 enhancement had no effect
on either his adjusted offense level or his final sentence. As
such, he cannot show that the district court committed plain error
when it imposed this enhancement after determining the underlying
facts by a preponderance of the evidence. See United States v.
Hughes, 401 F.3d 540, 548 (4th Cir. 2005) (outlining prejudice
requirement for showing plain error in Booker context).
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Accordingly, we affirm McConnell’s 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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