UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4357
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
KEITHIE NAPOLEON MOSLEY,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Anderson. Henry F. Floyd, District Judge. (CR-
04-942-HFF)
Submitted: December 28, 2005 Decided: January 24, 2006
Before NIEMEYER, MOTZ, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
David B. Betts, Columbia, South Carolina, for Appellant. Alan
Lance Crick, Assistant United States Attorney, Greenville, South
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Keithie Napoleon Mosley pled guilty pursuant to one count
of possession of a firearm as a convicted felon, in violation of 18
U.S.C. §§ 922(g), 924 (2000), and one count of possession of an
unregistered sawed-off shotgun, in violation of 26 U.S.C. §§ 5841,
5861(d), 5871 (2000). Counsel for Mosley filed a brief pursuant to
Anders v. California, 386 U.S. 738 (1967). Mosley filed a pro se
supplemental brief, citing United States v. Booker, 543 U.S. 220
(2005).
The presentence investigation report (“PSR”) recommended
a base offense level of twenty-six for count one because Mosley had
two prior felony convictions for “either a crime of violence or a
controlled substance offense,” and the 18 U.S.C. § 922(g) violation
involved a gun described in 26 U.S.C. § 5845(a) (2000). See U.S.
Sentencing Guidelines Manual § 2K2.1(a)(1) (2004). The PSR also
found that Mosley had been convicted of at least three prior
convictions for a violent felony or serious drug offense or both,
committed on occasions different from one another. The PSR found
Mosley to be an armed career criminal within the meaning of USSG
§ 4B1.4, and his offense level was enhanced to thirty-four. The
PSR gave Mosley a three-level reduction for acceptance of
responsibility and found a total offense level of thirty-one.
Combined with Mosley’s criminal history category of VI, the total
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offense level of 31 corresponded to a sentencing range of 188 to
235 months’ imprisonment. See USSG Ch. 5, Pt. A, table.
Mosley’s attorney first raises the issue of whether the
court complied with Fed. R. Crim. P. 11. We have reviewed the
record and conclude Mosley’s plea was entered knowingly and
voluntarily.
Mosley next contends, through counsel and in his pro se
supplemental brief, that his prior convictions were not “violent.”
The definitions of “serious drug offense” and “violent felony” are
derived from 18 U.S.C. § 924(e) (2000). We have reviewed the
record and conclude that Mosley’s prior convictions meet the
statutory definition of “serious drug offense” and “violent felony”
under § 924(e), nothwithstanding Mosley’s claim that he did not
employ violence in the commission of the offenses.
Next, Mosley alleges, both through counsel and pro se,
that the court erred under Booker by finding that he had at least
three prior convictions for a serious drug offense or violent
felony. Mosley argues he never admitted the prior convictions
qualified as violent felony or serious drug convictions. 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 a reasonable doubt that a
defendant had prior convictions as a prerequisite for a district
court to use those convictions for purposes of enhancing a
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sentence. Although the opinion in Apprendi v. New Jersey, 530 U.S.
466 (2000), expressed some uncertainty regarding the future
vitality of Almendarez-Torres, this court has subsequently
clarified that Almendarez-Torres was not overruled by Apprendi, and
remains the law. See United States v. Cheek, 415 F.3d 349, 352-53
(4th Cir.), cert. denied, 126 S. Ct. 640 (2005). In Cheek, this
Court concluded that Cheek’s designation as an armed career
criminal based on his prior convictions did not violate the Sixth
Amendment. Id.; see also United States v. Harp, 406 F.3d 242, 247
(4th Cir.), cert. denied, 126 S. Ct. 297 (2005).
In Shepard v. United States, 125 S. Ct. 1254 (2005), the
Supreme Court instructed that Sixth Amendment protections apply to
disputed facts about a prior conviction that are not evident from
“the conclusive significance of a prior judicial record.” Id. at
1262-63. Here, Mosley does not contest any facts about his prior
convictions used to arrive at the armed career criminal
designation. The court’s determination that Mosley was an armed
career criminal did not violate the Sixth Amendment. See United
States v. Collins, 412 F.3d 515, 521-23 (4th Cir. 2005); cf. United
States v. Washington, 404 F.3d 834, 843 (4th Cir. 2005) (finding
that district court’s reliance on disputed facts about prior
conviction to determine that it was crime of violence violated
Sixth Amendment). Accordingly, Mosley’s sentence did not violate
the Sixth Amendment. Neither do we find that there is a
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nonspeculative basis for remanding to the district court to
determine whether Mosley was prejudiced by the mandatory
application of the Guidelines to his sentence. See United States
v. White, 405 F.3d 208, 223 (4th Cir.), cert. denied, 126 S. Ct.
668 (2005).
We have examined the entire record in this case in
accordance with the requirements of Anders, 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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