UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4179
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JIMMY JONES,
Defendant - Appellant.
No. 04-4183
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JIMMY JONES,
Defendant - Appellant.
Appeals from the United States District Court for the District of
South Carolina, at Florence. Terry L. Wooten, District Judge.
(CR-02-1017)
Submitted: August 22, 2005 Decided: October 4, 2005
Before MOTZ and TRAXLER, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
William F. Nettles, IV, Assistant Federal Public Defender,
Florence, South Carolina, for Appellant. Rose Mary Parham,
Assistant United States Attorney, Columbia, South Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
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PER CURIAM:
In these consolidated appeals, Jimmy Jones appeals his
conviction and sentence for one count of possession of a firearm by
a convicted felon in violation of 18 U.S.C. §§ 922(g)(1), 924(e)
(2000). Jones contends the district court erred enhancing his
sentence under 18 U.S.C. § 924(e) (2000), despite his argument that
with respect to one of the predicate convictions, he did not
voluntarily waive his right to counsel. Jones further contends the
use of prior convictions to enhance his sentence is improper under
the rule announced in Blakely v. Washington, 542 U.S. 296 (2004),
when the convictions were not charged in the indictment, proven to
a jury or admitted by the defendant. Finding no error, we affirm.
The presentence investigation report (“PSR”) noted Jones
was an armed career criminal withing the meaning of U.S. Sentencing
Guidelines Manual § 4B1.4(b)(3)(A) (2002). Accordingly, his base
offense level was raised to 34. The PSR noted a 1993 conviction
for burglary, a 1994 conviction for burglary and a 1998 state
conviction for possession with intent to distribute powder cocaine.
At sentencing, Jones argued the cocaine conviction could not be
used to determine his sentence because it was uncounseled and he
did not voluntarily waive counsel. After taking evidence, the
district court found Jones did not meet his burden establishing he
did not voluntarily waive counsel.
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While a defendant may challenge at sentencing the
validity of a prior conviction used to enhance a sentence on the
ground that he was denied counsel, Custis v. United States, 511
U.S. 485, 495-96 (1994), he bears the “heavy” burden of showing the
prior conviction is invalid. United States v. Jones, 977 F.2d 105,
110, 111 (4th Cir. 1992). The determination of whether counsel is
waived is reviewed de novo. United States v. Hondo, 366 F.3d 363,
365 (4th Cir. 2004).
Here, Jones had to overcome the presumption that the
state court informed him of his right to counsel as it was required
by statute to do. Parke v. Raley, 506 U.S. 20, 28-34 (1992)
(holding a presumption of regularity attaches to final judgments
and makes it appropriate for defendant to have burden of showing
irregularity of prior plea). We agree with the district court in
its findings and find Jones did not meet his burden of proof.
Jones further contends the use of prior convictions not
charged in the indictment, found by a jury or admitted by the
defendant, to increase a sentence is improper under the rule
announced in Blakely v. Washington, 542 U.S. 296 (2004). Jones
challenges the continued viability of Almendarez-Torres v. United
States, 523 U.S. 224, 233-35 (1998). Jones did not raise this
issue in the district court. Consequently, we review for plain
error. United States v. Hughes, 401 F.3d 540, 547 (4th Cir. 2005)
(citing United States v. Olano, 507 U.S. 725, 731-32 (1993)). To
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meet this plain error standard: (1) there must be an error;
(2) the error must be plain; and (3) the error must affect
substantial rights. Olano, 507 U.S. at 732-34. If the three
elements of the plain error standard are met, we may exercise our
discretion to notice error only “when failure to do so would result
in a miscarriage of justice, such as when the defendant is actually
innocent or the error seriously affects the fairness, integrity, or
public reputation of judicial proceedings.” United States v.
Hughes, 401 F.3d 540, 555 (4th Cir. 2005) (internal quotation marks
and citation omitted).
In Almendarez-Torres, the Supreme Court held 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, we have subsequently confirmed that
Almendarez-Torres was not overruled by Apprendi, and remains the
law. United States v. Cheek, 415 F.3d 349, , 2005 WL 1669398,
*3-4 (4th Cir. 2005).*
*
We note the holding in Shepard v. United States, 125 S. Ct.
1254 (2005), does not support Jones’ claim. The district court did
not look beyond the record of conviction to determine facts about
the conviction. Once the court determined Jones voluntarily waived
counsel, the fact of conviction was all that was necessary for it
to be used to increase the offense level.
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Accordingly, we affirm the 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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