UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4249
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ISADORE LAMONT LAMKIN, a/k/a LL,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Columbia. Matthew J. Perry, Jr., Senior
District Judge. (CR-02-852)
Submitted: October 5, 2005 Decided: January 4, 2006
Before NIEMEYER, MICHAEL, and TRAXLER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
David B. Betts, Columbia, South Carolina, for Appellant. Stacey
Denise Haynes, OFFICE OF THE UNITED STATES ATTORNEY, Columbia,
South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Isadore Lamont Lamkin pled guilty pursuant to a written
plea agreement to one count of possession of a firearm by a felon
in violation of 18 U.S.C. § 922(g)(1); 924(e) (2000). Lamkin was
sentenced to a 200-month term of imprisonment. We affirm the
conviction and sentence and deny Lamkin’s motion to remand for
resentencing.
The district court determined that the statutory
conditions set forth in § 924(e), the Armed Career Criminal Act
(“ACCA”), were satisfied and assigned Lamkin a base offense level
of thirty-four. See U.S. Sentencing Guidelines Manual
§ 4B1.4(b)(3)(A) (2002). A three-level adjustment for acceptance
of responsibility was applied, thereby giving Lamkin an adjusted
offense level of thirty-one. Lamkin was assessed twenty criminal
history points, which included a two-point increase under
§ 4A1.1(d) because he committed the offense while on state parole
and a one-point increase under § 4A1.1(e) because he committed the
offense less than two years after release from imprisonment on a
sentence counted under § 4A1.1(a) or (b), thereby placing him in
criminal history category VI. The resulting guideline range was
188 to 235 months. As Lamkin did not object, the district court
adopted the findings in the Presentence Investigation Report and
sentenced him to a 200-month term of imprisonment.
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On appeal, Lamkin’s counsel initially filed a brief
pursuant to Anders v. California, 386 U.S. 738 (1967), asserting
that there were no meritorious grounds for appeal. Lamkin filed a
pro se supplemental brief in which he argues that, pursuant to
Blakely v. Washington, 542 U.S. 296 (2004), the district court
erred in its determination that the offense level under
§ 4B1.4(b)(3) was thirty-four rather than thirty-three. In his
amended pro se supplemental brief, Lamkin expands this argument to
include the Supreme Court’s decision in United States v. Booker,
125 S. Ct. 738 (2005). He asserts that the district court
committed Sixth Amendment error when it determined, without a jury
finding or by admission, that the statutory conditions of the ACCA
had been satisfied.
Lamkin’s counsel then filed a motion to remand for
resentencing in light of the original panel decision in United
States v. Hughes, 401 F.3d 540 (4th Cir. 2005). The Government,
which had previously elected not to file an answering brief, filed
a response in which it requested this court to stay a ruling on
this motion until the resolution of the then-pending petition for
rehearing en banc in Hughes, which has subsequently been denied.
As the issues Lamkin raises are asserted for the first
time on appeal, review is for plain error. United States v. Evans,
416 F.3d 298, 300 (4th Cir. 2005). To establish that a Sixth
Amendment error occured during sentencing, a defendant who entered
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a guilty plea must show that the district court imposed a sentence
exceeding the maximum allowed based only on the facts to which he
admitted. Id. However, we have recognized an exception to the
general rule in that a district court may enhance a sentence based
on the “fact of a prior conviction” regardless of whether or not it
was admitted to by the defendant or found by a jury. United
States v. Thompson, 421 F.3d 278, 282 (4th Cir. 2005). Therefore,
an ACCA enhancement will not constitute Sixth Amendment error if
the facts necessary to support the enhancement “inhere in the fact
of conviction” rather than being “extraneous to it.” Id. at 283.
Thus, Lamkin’s first argument, that his prior convictions could not
be considered by the district court without a jury finding or an
admission, has no merit.
Next, Lamkin argues that the district court erred when it
characterized his prior convictions as having occurred on different
occasions rather than as a series of crimes committed on a single
occasion. We have recently recognized that an “occasion” is a
“‘predicate offense[] that can be isolated with a beginning and an
end[,]’” Thompson, 421 F.3d at 285 (quoting United States v.
Letterlough, 63 F.3d 332, 335 (4th Cir. 1995)). Applying this
standard in light of the circumstances of Lamkin’s prior offenses,
we find that the district court did not err in its application of
the ACCA.
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Lamkin next argues that because he did not plead guilty
to or otherwise admit that he possessed a firearm in connection
with a controlled substance offense, his base offense level should
have been thirty-three, under USSG § 4B1.4(b)(3)(B), rather than
thirty-four, under USSG § 4B1.4(b)(3)(A). Even assuming this
position is correct, no relief is warranted. Even with an offense
level of thirty-three, coupled with Lamkin’s criminal history
category of VI,* his guideline range would have been 235 to 293
months’ imprisonment. See USSG Ch. 5, Pt. A (2002) (sentencing
table). Because Lamkin’s sentence of 200 months does not exceed
the maximum authorized by the facts to which he admitted, no Sixth
Amendment error occurred. See Evans, 416 F.3d at 300-01.
To the extent Lamkin’s final argument can be construed as
claiming, for the first time, error in that he was sentenced under
a mandatory guideline system, review is for plain error. United
States v. White, 405 F.3d 208, 215 (4th Cir 2005). Lamkin has the
burden of showing that this error affected his substantial rights.
Id. at 223. Because the record contains no nonspeculative basis
for concluding that the district court would have imposed a lower
sentence under an advisory guideline system, Lamkin cannot make the
necessary showing. Id. at 224-25.
*
Lamkin’s prior convictions resulted in seventeen criminal
history points, thereby placing him in criminal history category
VI. As such, the district court’s assignment of three additional
criminal history points, under § 4A1.1, did not affect Lamkin’s
criminal history category.
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In accordance with Anders, we have reviewed the entire
record in this case and have found no meritorious issues for
appeal. Accordingly we affirm Lamkin’s conviction and sentence.
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 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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