UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 03-4924
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
TIMOTHY LEON NOGGIN,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. James R. Spencer, District
Judge. (CR-03-237)
Submitted: August 26, 2005 Decided: November 14, 2005
Before MICHAEL, KING, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
J. Paul Gregorio, PAONE & GREGORIO, PLLC, Richmond, Virginia, for
Appellant. Paul J. McNulty, United States Attorney, Michael J.
Elston, Michael C. Wallace, Sr., Assistant United States Attorneys,
Alexandria, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Timothy Leon Noggin was convicted on three counts of
distributing cocaine base or “crack.” Counts 2 and 3 were for
distributing five grams or more of the drug. The Government filed
notice under 21 U.S.C. § 851(a)(1) (2000) that it intended to seek
an enhanced sentence because of Noggin’s prior drug convictions.
Noggin was sentenced as a career offender, under U.S. Sentencing
Guidelines Manual § 4B1.1(b)(A) (2003), to 360 months of
imprisonment. Without the career offender designation, Noggin’s
total offense level would have been twenty-eight which, with his
criminal history category of IV, would have given him a guideline
range of 110 to 137 months of imprisonment. Noggin timely
appealed.
On appeal, counsel has filed a brief under Anders v.
California, 386 U.S. 738 (1967), alleging that there are no
meritorious claims on appeal but nevertheless asserting that (1)
the district court erred by allowing hearsay testimony; (2) there
was insufficient evidence to support Noggin’s convictions; (3) the
testimony of the confidential informer was unreliable; and (4) the
district court committed plain error. Noggin’s counsel filed a
supplemental brief challenging his sentence, in light of the
Supreme Court’s opinion in United States v. Booker, 543 U.S.__, 125
S. Ct. 738 (2005). Noggin has filed several pro se supplemental
briefs. For the reasons that follow, we affirm.
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We conclude that none of Noggin’s challenges are
meritorious. First, the district court did not abuse its
discretion by admitting the alleged hearsay evidence regarding
Noggin’s license tag number. See United States v. Mohr, 318 F.3d
613, 618 (4th Cir. 2003) (stating review standard). In any event,
any error was harmless. See Fed. R. Evid. 103(a); Fed. R. Crim. P.
52(a). Second, we conclude that the convictions were supported by
substantial evidence. Glasser v. United States, 315 U.S. 60, 80
(1942); United States v. Burgos, 94 F.3d 849, 862 (4th Cir. 1996).
Next, this court does not review witness credibility. United
States v. Wilson, 118 F.3d 228, 234 (4th Cir. 1997). Finally, our
review of the trial record reveals no plain error. United States
v. Olano, 507 U.S. 725, 731-32 (1993); United States v. Hughes, 401
F.3d 540, 546-56 (4th Cir. 2005).
Neither do we conclude that Noggin’s sentence is
erroneous in light of the Supreme Court’s opinion in Booker. In
that case, the Court held the mandatory manner in which the federal
sentencing guidelines required courts to impose sentencing
enhancements based on facts found by a court by a preponderance of
the evidence violated the Sixth Amendment. 125 S. Ct. at 746, 750.
The Court remedied the constitutional violation by severing two
statutory provisions, 18 U.S.C. § 3553(b)(1) (2000) (requiring
courts to impose a sentence within the applicable guideline range),
and 18 U.S.C. § 3742(e) (2000) (setting forth appellate standards
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of review for guideline issues), thereby making the guidelines
advisory. Hughes, 401 F.3d at 546 (citing Booker, 125 S. Ct. at
756-57).
A district court violates the Sixth Amendment when,
acting pursuant to the Sentencing Reform Act and the Guidelines, it
imposes a sentence greater than the maximum authorized by the facts
found by the jury or admitted by the defendant in a guilty plea.
Booker, 125 S. Ct. at 746, 750. The fact of a prior conviction,
however, is an exception to this general rule and need not be
proven to a jury beyond a reasonable doubt. Almendarez-Torres v.
United States, 523 U.S. 224 (1998). The Almendarez-Torres prior
conviction exception was reaffirmed in Booker. See 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.”).
Here, Noggin was correctly found to be a career offender
based upon the uncontroverted facts of his two prior state drug
distribution charges which were separated by an intervening arrest.
We have held that the application of the career offender
enhancement falls within the exception for prior convictions where
the facts were undisputed, making it unnecessary to engage in
further fact finding about a prior conviction. United States v.
Collins, 412 F.3d 515, 521-23 (4th Cir. 2005). Noggin’s claim is
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foreclosed by Collins, and he does not dispute that he satisfied
the requirements for the career offender enhancement. See United
States v. Harp, 406 F.3d 242, 245, 247-48 (4th Cir. 2005) (citing
USSG § 4B1.1(a) and discussing standard).
Next, we do not conclude that Noggin’s sentence was
unreasonable under Booker. After Booker, courts must calculate the
appropriate guideline range, consider the range in conjunction with
other relevant factors under the guidelines and 18 U.S.C.
§ 3553(a), and impose a sentence; if a court imposes a sentence
outside the guideline range, the district court must state its
reasons for doing so. Hughes, 401 F.3d at 547-48. This remedial
scheme applies to any sentence imposed under the mandatory
guidelines, regardless of whether or not the sentence violates the
Sixth Amendment. Id. at 547 (citing Booker, 125 S. Ct. at 769).
Because Noggin claims for the first time on appeal that
the district court erred in applying the guidelines as mandatory,
his argument is reviewed for plain error. United States v. White,
405 F.3d 208, 215 (4th Cir. 2005). Under this standard, although
the district court committed error in treating the guidelines as
mandatory, see Hughes, 401 F.3d at 547-48, Noggin is not entitled
to relief. We recently held in a plain error context that the
error of sentencing under the mandatory guidelines regime did not
warrant a presumption of prejudice and was not structural error.
White, 405 F.3d at 224. As in White, Noggin cannot carry his
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burden of demonstrating actual prejudice, and we find no
nonspeculative basis on which to conclude that the district court
would have sentenced Noggin to a lower sentence had the court
proceeded under an advisory guideline scheme. Id. at 223. In
fact, analysis of the record provides evidence to the contrary:
the district court made it clear that Noggin deserved the career
offender enhancement.
We have reviewed the pro se issues raised by Noggin and
conclude they are without merit. In accordance with the
requirements of Anders we have reviewed the record and find no
meritorious issues for appeal. Accordingly, we affirm. This court
requires that counsel inform his client, in writing, of his right
to petition the Supreme Court of the United States for further
review. If the client requests that a petition be filed, but
counsel believes that such a petition would be frivolous, then
counsel may move in this court for leave to withdraw from
representation. Counsel’s motion must state that a copy thereof
was served on the client. 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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