UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4885
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
FARUQ C. A. SHAFIQ,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. James R. Spencer, District
Judge. (CR-03-338)
Submitted: February 16, 2005 Decided: November 30, 2005
Before WILKINSON, KING, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Frank W. Dunham, Jr., Federal Public Defender, Charles D. Lewis,
Assistant Federal Public Defender, Meghan S. Skelton, Research and
Writing Attorney, Richmond, Virginia, for Appellant. Paul J.
McNulty, United States Attorney, Michael J. Elston, Assistant
United States Attorney, Matthew C. Ackley, Special Assistant United
States Attorney, Richmond, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Following a bench trial, Faruq C. A. Shafiq was convicted
of possession of a firearm by a convicted felon, in violation of 18
U.S.C. § 922(g)(1) (2000) (Count One); possession with intent to
distribute cocaine base, in violation of 21 U.S.C. § 841 (2000)
(Count Two); possession of cocaine base, in violation of 21 U.S.C.
§ 844 (2000) (Counts Three and Eight); possession of heroin, in
violation of 21 U.S.C. § 844 (Count Four); possession of marijuana,
in violation of 21 U.S.C. § 844 (Count Five); and possession with
intent to distribute cocaine base, in violation of 21 U.S.C. § 841
(Count Seven). The district court sentenced Shafiq under the
Federal Sentencing Guidelines to 121 months in prison. Shafiq
timely appealed, challenging the calculation of his sentence under
the guidelines. We affirm.
Shafiq contends that his sentence is unconstitutional in
light of Blakely v. Washington, 542 U.S. 296 (2004). His claims
are reviewed for plain error because they were not raised in the
district court. Fed. R. Crim. P. 52(b); United States v. Harp, 406
F.3d 242, 247 (4th Cir. 2005), petition for cert. filed (July 29,
2005) (No. 05-5887). 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. Hughes, 401 F.3d
540, 547-48 (4th Cir. 2005). If the defendant establishes these
requirements, the court may exercise its discretion to notice the
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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.” Id. at 555 (internal
quotation marks and citations omitted).
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. (Stevens, J.,
opinion of the Court). The Court remedied the constitutional
violation by making the guidelines advisory through the removal of
two statutory provisions that had rendered them mandatory. Id. at
746 (Stevens, J., opinion of the Court); id. at 756-57 (Breyer, J.,
opinion of the Court).
Shafiq asserts two claims under Blakely. First, he
argues that his sentence violates the Sixth Amendment because he
received a two-level obstruction of justice enhancement pursuant to
U.S. Sentencing Guidelines Manual § 3C1.1 (2003) for perjury when
perjury was not charged in the indictment or proven beyond a
reasonable doubt. Second, he claims that the court erred in
calculating his criminal history score.
Addressing Shafiq’s criminal history argument first, in
calculating Shafiq’s criminal history score, the district court
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assigned six criminal history points based upon prior convictions,
two criminal history points based upon the court’s finding that
Shafiq committed the instant offense while on probation from a
conviction of driving on a suspended license, and one point because
the court found that he committed the instant offense less than two
years after release from an assault conviction. USSG § 4A1.1
(2003). Nine criminal history points placed Shafiq in criminal
history category IV. USSG Ch. 5, Pt. A (Sentencing Table).
While not disputing the six criminal history points for
prior convictions, Shafiq challenges the remaining three points,
arguing that the determination of whether he committed the instant
offense while on probation for one conviction and less than two
years after release from another conviction involved more than the
mere fact of prior convictions and therefore was subject to the
requirements of Blakely. However, the district court’s
determination was based solely on information inherent in Shafiq’s
prior convictions; namely, the date he was released from a sentence
and whether Shafiq was on probation for another offense at the time
he committed the instant offense. We conclude that such
information was not extraneous to the facts of Shafiq’s prior
convictions and therefore did not constitute factfinding in
violation of the Sixth Amendment. Cf. United States v. Thompson,
421 F.3d 278, 282-83 (4th Cir. 2005).
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Turning to Shafiq’s claim that the district court
violated his Sixth Amendment rights by enhancing his sentence for
obstruction of justice, pursuant to USSG § 3C1.1, we find that
Shafiq is not entitled to relief. The presentence report
calculated Shafiq’s guideline range to be 121 to 151 months in
prison. This finding was based on an offense level of twenty-seven
(based on the facts of conviction), plus a two-level increase for
obstruction of justice pursuant to USSG § 3C1.1, resulting in a
total offense level of 29. The district court imposed a sentence
of 121 months imprisonment. Without consideration of the
challenged obstruction of justice enhancement, Shafiq would have
had an offense level of 27. Shafiq does not challenge the factual
findings underlying his conviction and, in light of his waiver of
a jury trial in favor of a bench trial, he could not realistically
contend that his Sixth Amendment rights were violated by the
district court’s setting his offense level at 27. Without
consideration of the challenged obstruction of justice enhancement
and calculating his guideline range based on offense level 27 and
criminal history category IV, Shafiq’s guideline range would have
been 100 to 125 months. USSG Ch. 5, Pt. A (Sentencing Table). The
district court sentenced Shafiq to 121 months. Because this
sentence does not exceed the maximum sentence that could have been
imposed based on the facts of conviction found by the district
court after Shafiq waived his jury right, no Sixth Amendment
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violation occurred. See United States v. Evans, 416 F.3d 298, 300-
01 (4th Cir. 2005) (holding that if sentence does not exceed
maximum authorized by facts admitted by defendant or found beyond
a reasonable doubt, there is no Sixth Amendment violation).
Accordingly, we affirm Shafiq’s convictions and sentence.
Shafiq’s motion to hold his appeal in abeyance pending the Supreme
Court’s decision in Booker is denied as moot. 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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