UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4755
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
SHELTON LAKIE GRIFFIN,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. William L. Osteen,
District Judge. (CR-04-14)
Submitted: August 19, 2005 Decided: September 19, 2005
Before WILKINSON and KING, 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Affirmed by unpublished per curiam opinion.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, Kearns
Davis, 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Unpublished opinions are not binding precedent in this circuit.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:
Shelton Lakie Griffin was convicted by a jury of
possession of a firearm by a convicted felon, in violation of 18
U.S.C. § 922(g) (2000). Griffin appeals, claiming that the
evidence was insufficient to convict and that his 120-month
sentence violates the Sixth Amendment. We affirm.
I
Testimony at trial showed that on December 21, 2002,
Griffin and Everette Bostic engaged in target practice, using an
SKS rifle. Later that evening, they went to the Level III
nightclub in Rockingham, North Carolina. Officers responded to a
report of shots being fired at the club. Officer Rene Trevino was
the first officer to arrive. He testified that he exited his
patrol car and walked roughly thirty yards towards the club. He
observed a blue car with no lights approaching him. A slim figure
was hanging out the passenger window with his back towards Trevino.
The passenger turned, aimed a rifle at Trevino, and fired. Trevino
returned fire. The car accelerated, and the driver attempted to
strike Trevino, missing him by only a few feet. Trevino noticed
that the driver was heavy-set and wearing a white shirt.
Detective Robert Heaton testified that he exited his car
upon arriving at the scene. He saw the blue car, which
accelerated, causing him to dive behind his car. After the car
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passed, Heaton got in his car and gave pursuit. The blue car
struck a tree. Heaton saw the driver, a large black man in a white
shirt, exit the vehicle. He also saw a passenger exit the car.
The driver, Bostic, was quickly apprehended. The passenger fled.
Deputy Claude Taylor, a K-9 officer, took his dog, K-9
Cindy, to the passenger side of the blue car so she could track the
passenger’s scent. K-9 Cindy first found a rifle, then a single
boot, in some nearby woods. Taylor turned the rifle and the boot
over to the police department.
Officer Travis Bohman, who was a passenger in Detective
Heaton’s car, testified that he noticed that the passenger in the
car was wearing dark clothing. When Bohman discovered Griffin in
the woods, Griffin was missing a boot that matched the one that K-9
Cindy had found, was wearing dark clothing, and had pieces of glass
in his hair and cuts on his face.
After he was apprehended, Griffin admitted that he had
been a passenger in Bostic’s car. Griffin denied having fired any
shots, however. Griffin stipulated that he was a convicted felon.
Following his conviction, a presentence report was
prepared. The probation officer assigned Griffin a base offense
level of 24, U.S. Sentencing Guidelines Manual § 2K2.1(a)(2)
(2003), because Griffin had two previous felony convictions for
crimes of violence. Four levels were added because Griffin
possessed the firearm in connection with another felony offense,
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see USSG § 2K2.1(b)(5), three levels were added because he created
a substantial risk of serious bodily injury to a law enforcement
officer, see USSG § 3A1.2(b), and two levels were added for
obstruction of justice because Griffin fired in an attempt to avoid
arrest and for reckless endangerment during flight, see USSG
§ 3C1.2.
With a total offense level of 33 and a criminal history
category of VI, Griffin’s guideline range was 235-293 months.
However, because the maximum term of imprisonment for his offense
was ten years, see 18 U.S.C. § 924(a)(2) (2000), the statutory
maximum of 120 months became the guideline sentence. See USSG
§ 5G1.1(a).
Griffin objected under Blakely v. Washington, 542 U.S.
296 (2004), to the base offense level of 24, the increases under
USSG §§ 2K2.1(b)(5), 3A1.2(b), and 3C1.2, and his criminal history
category. At sentencing, the district court overruled the Blakely
objections and declined to impose an alternative sentence. The
court sentenced Griffin to 120 months in prison.
II
Griffin first contends that there was insufficient
evidence to support his conviction. In reviewing a sufficiency
claim, “[t]he relevant question is . . . whether, viewing the
evidence in the light most favorable to the government, any
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rational trier of facts could have found the defendant guilty
beyond a reasonable doubt.” United States v. Tresvant, 677 F.2d
1018, 1021 (4th Cir. 1982). We consider both direct and
circumstantial evidence “and allow the government the benefit of
all reasonable inferences from the facts proven to those sought to
be established.” Id. Witness credibility lies within the sole
province of the jury, and the court will not reassess the
credibility of testimony. United States v. Saunders, 886 F.2d 56,
60 (4th Cir. 1989). We will uphold a verdict “‘if there is
substantial evidence to support it.’” United States v. Wills, 346
F.3d 476, 495 (4th Cir. 2003) (quoting Glasser v. United States,
315 U.S. 60, 80 (1942)).
We conclude that the evidence was sufficient to convict
Griffin, who stipulated that he was a convicted felon. He admitted
that he was a passenger in Bostic’s vehicle. Only two persons--the
driver and passenger--were in the car. Trevino saw the passenger
shoot a rifle from the car. After the car struck the tree, both
the driver and the passenger exited the car. The driver, Bostic,
was apprehended immediately. K-9 Cindy, who was tracking the
passenger’s scent, located a rifle that was the same type that
Griffin had used at target practice the day before. The dog also
alerted to a boot that was the mate to the one Griffin was wearing
when Bohman found him in the woods outside the nightclub. When he
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was apprehended, Griffin was wearing dark clothing, just as the
passenger in Bostic’s car was.
III
Griffin contends that his sentence violates the Sixth
Amendment. First, he claims that his base offense level should
have been 14 instead of 24 because the jury did not find that he
committed the offense after having previously been convicted of two
crimes of violence. See USSG § 2K2.1(a). Because he raised this
issue below, our review is de novo. See United States v. Mackins,
315 F.3d 399, 405 (4th Cir. 2003). Second, Griffin objects to his
placement in criminal history category VI, contending that he
belonged in category I. Our review of this claim, raised for the
first time on appeal, is for plain error. See United States v.
Olano, 507 U.S. 725, 732 (1993).
With respect to criminal history, Griffin contends that
the factual findings required to determine whether particular
convictions are countable and how many points are assessed involve
more than the mere fact of a prior conviction and therefore are
subject to the requirements of Blakely. He argues that, even if
the prior conviction exception of Almendarez-Torres v. United
States, 523 U.S. 224 (1998), is still good law, it must be narrowly
applied, limited to the fact of a prior conviction, and not
extended to include any fact about a prior conviction.
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In Shepard v. United States, 125 S. Ct. 1254 (2005), the
Supreme Court instructed that Sixth Amendment protections apply to
disputed facts about a prior conviction that are not evident from
“the conclusive significance of a prior judicial record.” Id. at
1262-63. Here, Griffin did not contest any facts about his prior
convictions used to arrive at his criminal history score; rather,
his is a purely legal argument. Therefore, the district court did
not consider any facts Griffin did not admit, and the court’s
determination of his criminal history did not violate the Sixth
Amendment. See United States v. Collins, 412 F.3d 515 (4th Cir.
2005).
Just as Griffin did not contest any facts supporting his
criminal history score, he did not contest facts about the two
convictions identified in the presentence report as predicate
crimes of violence warranting the increase to base offense level
24. For the reasons discussed above, there was no error in
treating those convictions as undisputed and accordingly assigning
the base offense level.
An offense level of 24 and a criminal history category of
VI results in a guideline range of 100-125 months. Because
Griffin’s sentence of 120 months does not exceed the maximum of
this unenhanced guideline range, there was no Sixth Amendment
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violation. See United States v. Evans, 416 F.3d 298 (4th Cir.
2005).*
IV
We accordingly affirm. We dispense with oral argument
because the facts and legal contentions are adequately presented in
the material before the court and argument would not aid the
decisional process.
AFFIRMED
*
The district court increased the base offense level pursuant
to USSG §§ 2K2.1(b)(5), 3A1.2(b), and 3C1.2. These increases,
based solely on judge-found facts, were impermissible under the
Sixth Amendment. No remand for resentencing based on these errors
is required, however, because Griffin’s 120-month sentence does not
exceed the maximum sentence possible under the unenhanced guideline
range of 100-125 months.
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