UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4082
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
DAVID STEPHEN ROLLISON,
Defendant - Appellant.
No. 05-4083
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
TIMOTHY GOVERNOR ALEXANDER,
Defendant - Appellant.
Appeals from the United States District Court for the Middle
District of North Carolina, at Durham. James A. Beaty, Jr.,
District Judge. (CR-04-195)
Submitted: September 14, 2005 Decided: October 12, 2005
Before LUTTIG, WILLIAMS, and MICHAEL, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Louis C. Allen, III, Federal Public Defender, Williams C. Ingram,
First Assistant Federal Public Defender, Greensboro, North
Carolina; Walter Lamar Jones, CLIFFORD, CLENDENIN O’HALE & JONES,
L.L.P., Greensboro, North Carolina, for Appellants. 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Unpublished opinions are not binding precedent in this circuit.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).
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PER CURIAM:
In these consolidated appeals, Appellants David Rollison
and Timothy Alexander appeal their sentences imposed after they
pleaded guilty under a written plea agreement to various crimes
related to their participation in an armed robbery of a North
Carolina jewelry store. They assert on appeal that their sentences
violated the Sixth Amendment under United States v. Booker, 125 S.
Ct. 738 (2005), and that they should be resentenced because the
Sentencing Guidelines were applied as mandatory. Finding no error
in their sentencing, we affirm.
Both Appellants asserted at sentencing that their
guidelines sentencing violated the Constitution under Blakely v.
Washington, 542 U.S. 296 (2004), so we review this issue de novo.
In Booker, the Supreme Court held that the “Sixth Amendment is
violated when a district court, acting pursuant to the Sentencing
Reform Act and the guidelines, imposes a sentence greater than the
maximum authorized by the facts found by the jury alone.” United
States v. Hughes, 401 F.3d 540, 546 (4th Cir. 2005). The Court
remedied this constitutional violation by severing and excising the
statutory provisions that mandate sentencing and appellate review
under the guidelines, thus making the guidelines advisory. United
States v. Booker, 125 S. Ct. 738, 756-57 (2005).
Contrary to the Appellants’ arguments, the calculation of
the Appellants’ criminal histories under the Sentencing Guidelines
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was not Sixth Amendment error because the calculations were based
upon their prior convictions. The Supreme Court reaffirmed in
Booker the prior conviction exception of Almendarez-Torres v.
United States, 523 U.S. 224 (1998). See Booker, 125 S. Ct. at 756
(“Any fact (other than a prior conviction) which is necessary to
support a sentence exceeding the maximum authorized by the facts
established by a plea of guilty or a jury verdict must be admitted
by the defendant or proved to a jury beyond a reasonable doubt.”).
While Justice Thomas’ concurrence in Shepard v. United States, 125
S. Ct. 1254, 1263-64 (2005), expressed doubt about the future
viability of the exception, the exception is still good law. See
United States v. Cheek, 415 F.3d 349 (4th Cir. 2005) (holding that,
under the Sixth Amendment, the fact of a prior conviction need not
be submitted to the jury or admitted by the defendant for it to
serve as the basis for a sentence enhancement).
Nor does the application of the prior conviction
exception to these Appellants raise any of the problems outlined in
Shepard. In Shepard, the Supreme Court instructed that Sixth
Amendment protections apply to disputed facts about a prior
conviction. Id. at 1262-63. The Appellants never disputed any
facts related to their prior convictions, so the district court’s
determination of their criminal histories did not violate the Sixth
Amendment. Cf. United States v. Washington, 404 F.3d 834, 843 (4th
Cir. 2005) (finding that district court’s reliance on disputed
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facts about the defendant’s prior conviction violated the
defendant’s Sixth Amendment right to trial by jury). This Court
has held that the nature and occasion of prior offenses are facts
inherent in the convictions that need not be alleged in the
indictment or submitted to a jury. See United States v. Thompson,
F.3d , 2005 WL 2128957 (4th Cir. Sept. 6, 2005) (No. 04-
4678). For these reasons, we find this issue is meritless.
As for the application of the Sentencing Guidelines as
mandatory, neither Appellant asserted this exact issue at
sentencing, so we review this issue for plain error. The Booker
Court concluded that even in the absence of a Sixth Amendment
violation, the imposition of a sentence under the mandatory
guidelines regime was error. Booker, 125 S. Ct. at 769; see also
United States v. White, 405 F.3d 208, 216-17 (4th Cir. 2005).
Hughes explained that sentencing under a mandatory regime is “a
separate class of error . . . distinct from the Sixth Amendment
claim that gave rise to the decision in Booker.” Hughes, 401 F.3d
at 553. This Court recognized that “[t]his error . . . may be
asserted even by defendants whose sentences do not violate the
Sixth Amendment.” Id. Such is the case here. The district court
may have erred in sentencing these Appellants under the former
mandatory guidelines regime, but the question is whether the error
was plain and should be recognized by the Court.
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To demonstrate plain error, a defendant must establish
that error occurred, that it was plain, and that it affected his
substantial rights. United States v. Olano, 507 U.S. 725, 731-32
(1993); Hughes, 401 F.3d at 547-48. If a defendant establishes
these requirements, the Court’s “discretion is appropriately
exercised 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.” Hughes, 401 F.3d at 555
(internal quotation marks and citation omitted).
In White, this Court determined imposing a sentence under
the guidelines as mandatory was error that was plain. White, 405
F.3d at 216-17. However, the Court in White then discussed the
third prong of the plain error analysis. In determining whether an
error affected the defendant’s substantial rights, the Court
reasoned that “the error of sentencing a defendant under a
mandatory guidelines regime” was not an error for which prejudice
would be presumed. Id. at 219-20, 224. Rather, the defendant
bears the burden of showing that this error prejudiced him, or
“‘affected the outcome of the district court proceedings.’” Id. at
223 (quoting Olano, 507 U.S. at 734). In making this
determination, the Court must consider the standard in Kotteakos v.
United States, 328 U.S. 750, 765 (1946): “whether ‘after pondering
all that happened without stripping the erroneous action from the
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whole, . . . the judgment was . . . substantially swayed by the
error.’” White, 405 F.3d at 223 (citations and footnotes omitted).
In White, this Court held that treating the guidelines as
mandatory was error and that the error was plain. Id. at 216-17.
The Court declined to presume prejudice, however, id. at 217-18,
and held that the “prejudice inquiry, therefore, is . . . whether
after pondering all that happened without stripping the erroneous
action from the whole, . . . the judgment was . . . substantially
swayed by the error.” Id. at 223 (internal quotation marks and
citations omitted). To make this showing, a defendant must
“demonstrate, based on the record, that the treatment of the
guidelines as mandatory caused the district court to impose a
longer sentence than it otherwise would have imposed.” Id. at 224.
Because the record in White provided no nonspeculative basis
suggesting that the court would have sentenced the defendant
differently had the guidelines been advisory instead of mandatory,
this Court concluded that the error did not affect the defendant’s
substantial rights. Id. at 225.
The Appellants do not assert in any nonspeculative way
how their sentences would have been different if the district court
sentenced them under an advisory guidelines regime. Thus, it would
only be speculation to conclude that the district court would have
sentenced them to a lower sentence had it treated the guidelines as
merely advisory.
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For these reasons, we affirm the Appellants’ sentences.
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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