United States v. Shuman

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 05-4450

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

MARK LEE SHUMAN,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern
District of North Carolina, at Elizabeth City. Terrence W. Boyle,
District Judge. (CR-04-25)

Submitted: January 11, 2006 Decided: January 27, 2006

Before NIEMEYER, WILLIAMS, and MOTZ, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant. Frank D. Whitney, United States Attorney, Anne M.
Hayes, Jennifer May-Parker, Assistant United States Attorneys,
Raleigh, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

Mark Lee Shuman appeals the 180-month sentence imposed

after he pleaded guilty to one count of possession of a firearm

after having been convicted of a crime punishable by more than one

year of imprisonment, in violation of 18 U.S.C. §§ 922(g), 924

(2000). The district court concluded that Shuman qualified for

sentencing as an armed career criminal pursuant to 18 U.S.C.

§ 924(e) (2000), and sentenced him to the mandatory minimum term of

imprisonment.

On appeal, Shuman asserts that his sentence violates the

Supreme Court’s holding in United States v. Booker, 543 U.S. 220

(2005), because his sentence was enhanced based upon facts, his

qualifying prior convictions, that were not alleged in the

indictment, admitted by him, or found by a jury beyond a reasonable

doubt. Shuman does not assert that his prior convictions are not

valid predicates for sentencing as an armed career criminal, but

states only a legal challenge to his sentence. Shuman acknowledges

that his argument is foreclosed by existing Supreme Court precedent

on prior convictions and this court’s decision in United States v.

Cheek, 415 F.3d 349 (4th Cir. 2005). He asserts, however, that the

prior conviction exception will eventually be overruled, based on

Justice Thomas’s concurrence in United States v. Shepard, 125 S.

Ct. 1254 (2005).

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 In Cheek, we considered and rejected an argument

identical to Shuman’s contentions on appeal. We concluded:

It is thus clear that the Supreme Court continues to
hold that the Sixth Amendment (as well as due process)
does not demand that the mere fact of a prior conviction
used as a basis for a sentencing enhancement be pleaded
in an indictment and submitted to a jury for proof beyond
a reasonable doubt. Even were we to agree with Cheek’s
prognostication that it is only a matter of time before
the Supreme Court overrules Almendarez-Torres, we are not
free to overrule or ignore the Supreme Court’s
precedents.

Cheek, 415 F.3d at 352-53.

We therefore affirm Shuman’s conviction 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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