UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4699
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
CHANC DEON SNIPES,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. Frank W. Bullock, Jr.,
District Judge. (CR-04-39)
Submitted: August 12, 2005 Decided: November 29, 2005
Before LUTTIG, MICHAEL, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Louis C. Allen, III, Federal Public Defender, William S. Trivette,
Assistant Federal Public Defender, Greensboro, North Carolina, for
Appellant. Anna Mills Wagoner, United States Attorney, Michael A.
DeFranco, Assistant United States Attorney, Greensboro, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Chanc Deon Snipes appeals the 72-month sentence he
received after he pled guilty to one count for possession of a
firearm by a convicted felon, in violation of 18 U.S.C.
§§ 922(g)(1) and 924(a)(2) (2000). We affirm Snipes’ sentence.
Snipes maintains that under Blakely v. Washington, 542
U.S. 296 (2004), the district court violated his Sixth Amendment
rights by enhancing his offense level based on facts that were
neither charged in the indictment nor proven beyond a reasonable
doubt.1 Specifically, Snipes claims that his rights under the
Sixth Amendment were violated when the district court determined
his base offense level, under U.S. Sentencing Guidelines Manual
§ 2K2.1(a)(2) (2003), by considering a prior conviction for which
he was not indicted.2 Because Snipes preserved this issue by
objecting to the presentence report and at his sentencing hearing
based upon Blakely, this court’s review is de novo. See United
States v. Mackins, 315 F.3d 399, 405 (4th Cir. 2003).
1
Based on this court’s decision in United States v. Hammoud,
378 F.3d 426 (4th Cir.) (order), opinion issued by 381 F.3d 316
(4th Cir. 2004) (en banc), vacated, 125 S. Ct. 1051 (2005), the
Government asserted that Blakely did not apply to the federal
sentencing guidelines.
2
Snipes’ controlled substance offense for felony possession
with intent to manufacture, sell and deliver cocaine was part of
the indictment. However, Snipes’ crime of violence for felony
indecent liberties with a minor was not in the indictment.
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The Supreme Court held in United States v. Booker, 125 S.
Ct. 738, 746, 750 (2005), 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. In Almendarez-
Torres v. United States, 523 U.S. 224, 233-35 (1998), the Supreme
Court held that 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.
We find no Sixth Amendment error occurred. Had the
district court only considered Snipes’ prior conviction for a
controlled substance offense, which was not a fact outside the
indictment, then Snipes’ base offense level would have been twenty,
under USSG § 2K2.1(a)(4)(A) (a base offense level of twenty applies
if “the defendant committed any part of the instant offense
subsequent to sustaining one felony conviction for either a crime
of violence or a controlled substance offense”), instead of twenty-
four. Therefore, Snipes’ maximum total offense level would have
been twenty rather than twenty-one.3 Based on offense level twenty
3
As in United States v. Evans, 416 F.3d 298 (4th Cir. 2005),
for purposes of determining whether a Sixth Amendment violation
occurred, the sentence imposed on Snipes is compared against the
guideline range that was properly determined (thus not considering
the challenged base offense level of twenty-four, under USSG
§ 2K2.1(a)(2)) before that range was adjusted to account for the
three-point reduction in offense level Snipes received for
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and Snipes’ criminal history category of V, Snipes’ sentencing
range would have been sixty-three to seventy-eight months. Snipes’
actual sentence of seventy-two months fell squarely within that
range. Because Snipes’ sentence did not exceed the maximum
authorized by the facts of the offense to which he pled guilty,
there was no Sixth Amendment violation in his sentencing.
Regarding his criminal history points for prior
convictions, Snipes argues that the factual findings required to
determine whether particular convictions are countable and how many
points are assessed involve more than the mere fact of a prior
conviction and therefore are subject to the requirements of
Blakely. However, the application of the prior conviction
exception to Snipes does not raise any of the problems outlined in
Shepard v. United States, 125 S. Ct. 1254, 1262-63 (2005), because
no facts related to Snipes’ prior convictions were disputed.
Therefore, the district court’s assessment of seven criminal
history points based on Snipes’ prior convictions did not violate
the Sixth Amendment.
Turning to the two criminal history points assessed
because Snipes committed the instant offense while on unsupervised
probation and the one point for committing the instant offense less
than two years after release from imprisonment on a sentence
counted under USSG § 4A1.1(a) or (b), we conclude that the district
acceptance of responsibility.
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court did not err in assessing these points because they do not
require evaluation of the type of facts found outside the
indictment that are “too far removed from the conclusive
significance of a prior judicial record.” United States v.
Washington, 404 F.3d 834, 842 (4th Cir. 2005).
Accordingly, we affirm Snipes’ 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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