UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 03-4617
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
WILLIE LAWSON,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Alexander Williams, Jr., District Judge.
(CR-02-215)
Submitted: August 1, 2005 Decided: November 9, 2005
Before NIEMEYER, WILLIAMS, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Joseph R. Conte, LAW OFFICES OF JOSEPH R. CONTE, P.L.L.C.,
Washington, D.C., for Appellant. Thomas M. DiBiagio, United States
Attorney, Mythili Raman, Assistant United States Attorney,
Greenbelt, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Willie Lawson appeals his convictions and 684-month (57-
year) sentence for conspiracy to commit armed bank robbery in
violation of 18 U.S.C. § 371 (2000), two counts of armed bank
robbery in violation of 18 U.S.C. §§ 2, 2113(a), (d) (2000), and
two counts of using or carrying a firearm during or in relation to
a crime of violence in violation of 18 U.S.C. § 924(c) (West 2000
& Supp. 2005). For the reasons that follow, we affirm Lawson’s
convictions and sentence.
Lawson first argues that the district court erred in
denying his motion to dismiss the indictment in which he asserted
that this indictment charged him with the same conspiracy charge
for which he was convicted in the Eastern District of Virginia.
Applying the factors set forth in United States v. MacDougall, 790
F.2d 1135, 1144 (4th Cir. 1986), and considering the totality of
the circumstances, we find that the evidence actually used to
prosecute the earlier conspiracy offense would not be sufficient to
convict Lawson of the conspiracy charged in the instant case.
Therefore, the underlying prosecution does not violate double
jeopardy. See United States v. Ragins, 840 F.2d 1184, 1188 (4th
Cir. 1988).
The next issue presented on appeal is Lawson’s challenge
to the sufficiency of the evidence to support his convictions for
using and carrying a firearm. Viewing the evidence in the light
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most favorable to the government, see Glasser v. United States, 315
U.S. 60, 80 (1942), we find that the evidence was sufficient both
as to Lawson’s identity and to his use of a firearm. See United
States v. Redd, 161 F.3d 793, 797 (4th Cir. 1998); United States v.
Jones, 907 F.2d 456, 460 (4th Cir. 1990). Accordingly, we affirm
the district court’s denial of Lawson’s motion for judgment of
acquittal. See United States v. Wilson, 118 F.3d 228, 234 (4th
Cir. 1997) (providing standard).
Next, Lawson contends that the district court erred in
denying his motion to dismiss the indictment based on alleged
violations of Fed. R. Crim. P. 5 and 40. Lawson asserts that he
was improperly taken to a magistrate judge in Virginia following
his arrest in the District of Columbia on a warrant issued in
Virginia. Rules 5(a) and 40(a) of the Federal Rules of Criminal
Procedure in effect at the time of Lawson’s arrest on the Virginia
charge required that anyone arrested in a district other than that
in which the offense was allegedly committed be taken “without
unnecessary delay before the nearest available federal magistrate
judge.” Fed. R. Crim. P. 5(a), 40(a). Where the alleged delay
does not result in unwarranted interrogation, no prejudice results,
and any violation of Rule 5(a) does not require dismissal of the
indictment. See United States v. Neiswender, 590 F.2d 1269, 1271-
72 (4th Cir. 1979); Tarkington v. United States, 194 F.2d 63, 67-68
(4th Cir. 1952). Because Lawson does not allege any prejudice to
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the underlying case from the alleged violations in his prosecution
in the Virginia case, we uphold the district court’s denial of his
motion to dismiss the indictment. To the extent that Lawson
asserts that the violations of Rule 5 and 40 in the Virginia
prosecution denied him a speedy trial in this prosecution, we find
no merit to that claim. See 18 U.S.C.A. 3161(c)(1) (West Supp.
2005).
Lawson next challenges the district court’s imposition of
a 25-year sentence on his conviction on count three of the
indictment, the first § 924(c) count. He asserts that, because his
§ 924(c) conviction in the Virginia case was not final,* it could
not be treated as a prior conviction at sentencing in the Maryland
case. We agree with the district court that the fact that the
prior conviction was on appeal did not preclude the application of
the enhanced penalty provision. See Deal v. United States, 508
U.S. 129, 132 (1993); United States v. Neal, 976 F.2d 601, 602-03
(4th Cir. 1992).
In a supplemental brief, Lawson challenges his sentence
on the bank robbery offenses. First, he contends that his sentence
was enhanced based on judicial fact-finding, in violation of his
Sixth Amendment rights. However, because the sentence imposed did
not exceed the maximum sentence authorized by the jury’s verdict
*
A petition for certiorari was pending in the Supreme Court on
the date of Lawson’s sentencing in the Maryland case. The Supreme
Court denied certiorari on October 6, 2003.
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alone, see United States v. Evans, 416 F.3d 298, 300-01 & n.4 (4th
Cir. 2005), there was no error, much less plain error. United
States v. Hughes, 401 F.3d 540, 547-48 (4th Cir. 2005) (providing
for plain error review when issue raised for first time on appeal).
Lawson also asserts that he was sentenced under the
federal Sentencing Guidelines and that the Guidelines are
unconstitutional after Blakely v. Washington, 542 U.S. 296 (2004).
In United States v. Booker, 125 S. Ct. 738 (2005), the Supreme
Court held that the mandatory manner in which the federal
Sentencing Guidelines required courts to impose sentencing
enhancements based on facts found by the court by a preponderance
of the evidence violated the Sixth Amendment. Id. at 746, 750
(Stevens, J., opinion of the Court). The Court remedied the
constitutional violation by severing two statutory provisions, 18
U.S.C.A. § 3553(b)(1) (West Supp. 2005) (requiring courts to impose
a sentence within the applicable guideline range), and 18 U.S.C.A.
§ 3742(e) (West 2000 & Supp. 2005) (setting forth appellate
standards of review for guideline issues), thereby making the
Guidelines advisory. Hughes, 401 F.3d at 546 (citing Booker, 125
S. Ct. at 757, 764 (Breyer, J., opinion of the Court)).
Although it was error for Lawson to be sentenced under
the Guidelines as mandatory, he has failed to show that this error
affected his substantial rights. See United States v. White, 405
F.3d 208, 223 (4th Cir. 2005) (holding that defendant bears burden
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of showing that error “‘affected the outcome of the district court
proceedings’” (quoting United States v. Olano, 507 U.S. 725, 734
(1993))). Our review of the record “provides no nonspeculative
basis for concluding that the treatment of the [G]uidelines as
mandatory ‘affect[ed] the district court’s selection of the
sentence imposed.’” White, 405 F.3d at 223 (quoting Williams v.
United States, 503 U.S. 193, 203 (1992) (alteration in original)).
Because we find that Lawson has failed to show that his substantial
rights were affected by the district court’s error in imposing a
sentence under the Guidelines as mandatory, we affirm Lawson’s
sentence. See White, 405 F.3d at 224-25; Fed. R. Crim. P. 52(b);
Olano, 507 U.S. at 735, 737.
In conclusion, we affirm Lawson’s convictions 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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