UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4696
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
PRESTON CORNELIUS EVERETT, a/k/a P,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Leonie M. Brinkema, District
Judge. (CR-05-19)
Submitted: January 11, 2006 Decided: January 31, 2006
Before WILLIAMS, MOTZ, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
David B. Smith, ENGLISH & SMITH, Alexandria, Virginia, for
Appellant. Paul J. McNulty, United States Attorney, John Eisinger,
Assistant United States Attorney, Alexandria, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Preston Cornelius Everett was found guilty of conspiracy
to possess with intent to distribute five kilograms or more of
cocaine (Count 1) and possession of a firearm in furtherance of a
drug trafficking crime (Count 2). The Government timely filed
notice under 21 U.S.C. § 851 (2000) that it would be seeking an
enhanced sentence in Count 1 because of Everett’s prior Virginia
felony conviction for possession of cocaine. The court sentenced
Everett to the mandatory minimum sentence of twenty years, based on
his prior Virginia drug felony under 21 U.S.C.A. § 841(b)(1)(A)
(West 2000 & Supp. 2005) for Count 1 and to sixty months
consecutively on Count 2. On appeal, Everett alleges that his
240-month sentence for Count 1 violated: (1) the Sixth Amendment
under United States v. Booker, 543 U.S. 220 (2005), and (2) his due
process rights. For the reasons that follow, we affirm.
Everett’s first claim fails because, as we recently held,
the rule announced in Booker does not apply to statutory mandatory
minimum sentences. See United States v. Groce, 398 F.3d 679, 682
n.2 (4th Cir. 2005) (noting that judicial determination of how a
gun was used, which determines the mandatory minimum sentence in a
18 U.S.C. § 924(c) violation, is not affected by Booker); see also
Harris v. United States, 536 U.S. 545, 568 (2002).
Next, Everett argues that his due process rights were
violated because use of his prior felony Virginia drug offense,
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which would only have been a misdemeanor under federal law,
significantly enhanced his sentence. Such due process claims are
analogous to equal protection claims. See Chapman v. United
States, 500 U.S. 453, 465 (1991); Jones v. United States, 463 U.S.
354, 362, n.10 (1983). We have rejected the argument that
incorporating state definitions into the federal statutes violates
the Equal Protection Clause. See United States v. Lender, 985 F.2d
151, 156 n.* (4th Cir. 1993). Thus, this claim fails.
Accordingly, we affirm. 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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