UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-5120
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
PATRICK JERMAINE ROBERTS,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Charleston. Patrick Michael Duffy, District
Judge. (CR-04-295)
Submitted: January 27, 2006 Decided: February 10, 2006
Before KING and SHEDD, Circuit Judges, and HAMILTON, Senior Circuit
Judge.
Affirmed by unpublished per curiam opinion.
Parks N. Small, Federal Public Defender, Columbia, South Carolina,
for Appellant. Jonathan S. Gasser, Acting United States Attorney,
Alston C. Badger, Assistant United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Charleston, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Patrick Jermaine Roberts appeals his convictions and sentence
in the District of South Carolina on a controlled substance offense
and a firearms offense. As explained below, we affirm both his
convictions and his sentence.
I.
On the evening of February 18, 2003, Officer Robert Joyner of
the North Charleston Police Department was dispatched to a mobile
home park, upon information that a man there was lying in the
street bleeding. Joyner arrived to find Roberts, bleeding from
what appeared to be a bullet wound, lying near a green Jeep
Cherokee that was parked near a mobile home on Lot 218. Roberts
advised Joyner that he had shot himself and thereafter had thrown
the weapon from the Jeep. After arranging for Roberts to receive
medical attention, Joyner searched for the weapon. During this
search, he observed a trail of blood leading from where Roberts had
been found to the Jeep. A second trail of blood led from the Jeep
to the front steps of the mobile home on Lot 218, where Joyner
discovered a large pool of blood and a set of keys.
Fearing that possible victims or injured persons could be
inside the mobile home, Joyner, along with other officers who had
arrived on the scene, entered the mobile home without a warrant.
They then found another trail of blood leading into the master
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bedroom and to the edge of the bed. The officers looked under the
bed and discovered a firearm and what appeared to be a bag of
marijuana. The officers thereafter obtained a search warrant and,
in conducting a full warranted search of the mobile home,
discovered two handguns, a rifle, thirty-six pounds of marijuana,
a digital scale, and over $36,000 in cash.
On March 10, 2004, the federal grand jury indicted Roberts on
three counts: (1) possession with intent to distribute marijuana,
in contravention of 21 U.S.C. § 841(a)(1) (“Count One”); (2)
possession of firearms in furtherance of a drug trafficking
offense, in violation of 18 U.S.C. § 924(c)(1)(A)(iii) (“Count
Two”); and (3) being a felon in possession of firearms, in
contravention of 18 U.S.C. § 922(g)(1) (“Count Three”). Count
Three set forth the make, model, and general description of each of
the three firearms found by the officers in searching the mobile
home. On July 28, 2004, Roberts moved to suppress the evidence
seized from the mobile home, asserting that the officers’ initial
warrantless entry contravened Roberts’s Fourth Amendment rights.
On August 23, 2004, the district court denied the motion.
Thereafter, on September 10, 2004, Roberts pleaded guilty to Counts
One and Three of the indictment, and the prosecution agreed to
dismiss Count Two. Roberts’s pleas were conditional, see Fed. R.
Crim. P. 11(a)(2), in that he reserved the right to withdraw them
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in the event the denial of his motion to suppress is vacated on
appeal.
Roberts’s presentence report (“PSR”) first calculated his
sentence under Chapter Two of the Guidelines, assigning him a base
offense level of 26 on Count Three (which was grouped with Count
One) and recommending two enhancements — one for the number of
firearms involved and one for using the firearms in connection with
another felony offense — which placed Roberts at offense level 32.
The PSR also recommended, however, that Roberts be classified as an
Armed Career Criminal under 18 U.S.C. § 924(e) and § 4B1.4 of the
Guidelines. Moreover, because at least one of the firearms was
described in 26 U.S.C. § 5825(a), the PSR concluded that §
4B1.4(b)(3)(A) applied, prescribing a base offense level of 34.
Because the base offense level called for by § 4B1.4(b)(3)(A)
exceeded the offense level prescribed by Chapter Two, the PSR
concluded that § 4B1.4(b)(3)(A) governed, and that Roberts’s base
offense level was 34. It then recommended a three-level reduction
for acceptance of responsibility, resulting in a final offense
level of 31. The PSR also placed Roberts in criminal history
category VI because he qualified as a career offender pursuant to
§ 4B1.1(b). Combining offense level 31 with criminal history
category VI yielded an ultimate sentencing range of 188 to 235
months.
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The sentencing court adopted the recommendations of the PSR
and sentenced Roberts to 212 months in prison. Roberts has timely
noted his appeal, and we possess jurisdiction pursuant to 28 U.S.C.
§ 1291.
II.
In reviewing the denial of a suppression motion, we review a
district court’s factual findings for clear error and its legal
conclusions de novo. See United States v. Johnson, 114 F.3d 435,
439 (4th Cir. 1997). We review a district court’s interpretation
of the Guidelines de novo. See United States v. Ebersole, 411 F.3d
517, 535-36 (4th Cir. 2005). And we review for plain error any
claim not properly preserved and raised for the first time on
appeal. See United States v. Hughes, 401 F.3d 540, 547 (4th Cir.
2005).
III.
By this appeal, Roberts makes three contentions: (1) that the
district court erred in denying his motion to suppress the evidence
seized from the mobile home; (2) that the court erred in concluding
that he was an Armed Career Criminal under 18 U.S.C. § 924(e); and
(3) that his sentence was imposed in violation of his Sixth
Amendment right to trial by jury, as explained in United States v.
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Booker, 543 U.S. 220, 125 S. Ct. 738 (2005), and its progeny. We
assess each of these contentions in turn.
A.
Roberts first asserts that the district court erred in
concluding that exigent circumstances justified the officers’
initial warrantless search of the mobile home. We disagree. We
have long recognized that “‘[t]he Fourth Amendment does not bar
police officers from making warrantless entries and searches when
they reasonably believe that a person within is in need of
immediate aid.’” Sallie v. North Carolina, 587 F.2d 636, 641 (4th
Cir. 1978) (quoting Mincey v. Arizona, 437 U.S. 385, 392 (1978)).
Here, the officers found Roberts lying in a road bleeding from a
gunshot wound, they were unable to locate the weapon Roberts had
allegedly shot himself with, and they discovered a trail of blood
leading to the front steps of the mobile home at Lot 218. In such
circumstances, it is imminently reasonable to surmise that someone
inside the mobile home was “in need of immediate aid.” The
officers’ warrantless search of the mobile home therefore did not
contravene the Fourth Amendment.
B.
Roberts next maintains that the district court improperly
designated him as an Armed Career Offender under 18 U.S.C. §
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924(e). Section 924(e) provides for a mandatory minimum sentence
of fifteen years for any person “who violates section 922(g) . . .
and has three previous convictions . . . for a violent felony or
serious drug offense, or both, committed on occasions different
from one another.” Roberts does not dispute that his previous
convictions for armed robbery and for discharging a firearm in a
dwelling both constitute “violent felon[ies]” under § 924(e)(2)(B).
He maintains only that the court erred in classifying his 1995
conviction for marijuana possession as a “serious drug offense”
under § 924(e)(2)(A)(ii). Only those state drug offenses “for
which a maximum term of imprisonment of ten years or more is
prescribed by law” qualify as “serious drug offense[s]” under §
924(e)(2)(A)(ii), and, as Roberts and the Government agree, the
maximum punishment authorized for his 1995 marijuana conviction was
five years. Nevertheless, as the Government points out, Roberts
was also convicted in 1995 on a state charge for distributing crack
cocaine, an offense which carried a maximum punishment of fifteen
years and thus qualifies as a “serious drug offense” under §
924(e)(2)(A)(ii). Thus, setting the 1995 marijuana offense aside,
the 1995 crack distribution offense, together with the armed
robbery offense and the firearm discharge offense, qualify Roberts
as an Armed Career Offender under § 924(e).
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C.
Finally, Roberts maintains that the district court’s
enhancement of his sentence based on various judicially found facts
contravened his Sixth Amendment right to trial by jury as explained
in United States v. Booker, 543 U.S. 220, 125 S. Ct. 738 (2005).
He first asserts that, under Booker, the prior convictions used to
designate him as an Armed Career Criminal were required to be
admitted by him or found by a jury. He concedes that this argument
is foreclosed by the Supreme Court’s decision in Almendarez-Torres
v. United States, 523 U.S. 224 (1998), but he contends that Booker
has called Almendarez-Torres into question and that we should not
consider Almendarez-Torres to be controlling precedent. Whatever
the merits of Roberts’s contention, we are obliged to follow and
apply Almendarez-Torres, until and unless the Supreme Court rules
otherwise. See United States v. Cheek, 415 F.3d 349, 352-53 (4th
Cir. 2005) (concluding that Almendarez-Torres remains good law
after Booker).
Roberts also asserts that the sentencing enhancements for the
number of firearms involved in Count Three and the use of the
firearms in connection with another felony offense were based on
judicially found facts that enhanced his sentence beyond that
justified by the facts he admitted. As explained above, however,
the sentencing court did not use those enhancements in setting
Roberts’s offense level. Those enhancements were used in
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calculating Roberts’s offense level under Chapter Two of the
Guidelines, but Roberts’s ultimate offense level was calculated
under Chapter Four because the offense level calculated under §
4B1.4(b) was greater than that calculated under Chapter Two. See
§ 4B1.4(b) (providing, as relevant here, that offense level to be
used in calculating the sentencing range is greater of offense
level under Chapter Two or offense level under § 4B1.4(b)). Thus,
the enhancements of which Roberts complains played no role in the
computation of his sentencing range.
For its part, the Government seeks to concede that the
sentencing court erred under Booker in finding that Roberts, with
respect to Count Three, used the firearm in connection with a
controlled substances offense, which placed Roberts in offense
level 34 under § 4B1.4(b)(3)(A). We, however, need not accept the
Government’s concession. See United States v. Rodriguez, No. 04-
4609, __ F.3d __, 2006 WL 9602, at *2 n.6 (4th Cir. Jan. 3, 2006)
(“[W]e are not at liberty to vacate and remand for resentencing on
the Government's concession of error alone.”). A defendant can
qualify for offense level 34 under § 4B1.4(b)(3)(A) in two ways:
by using or possessing the firearm in connection with another
crime, or “if the firearm possessed by the defendant was of a type
described in 26 U.S.C. § 5845(a).” The PSR, as adopted by the
court, states both that Roberts used the firearm in connection with
a controlled substances offense and that the firearm was of a type
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described in § 5845(a). Because Count Three of the indictment
specifies the make, model, and general description of each firearm
Roberts admittedly possessed, the court, in determining that one of
the firearms was of a type described in § 5845(a), needed only make
the purely legal determination of whether § 5845(a) included the
firearms at issue, a legal determination that does not implicate
Booker.
Because Roberts’s sentence was not enhanced by judicially
found facts, no Sixth Amendment error occurred here. Thus, the
sentencing court’s only error was in treating the Guidelines as
mandatory. See United States v. White, 405 F.3d 208, 216 (4th Cir.
2005) (recognizing that “even in the absence of a Sixth Amendment
violation, the imposition of a sentence under the former mandatory
guidelines regime rather than under the advisory regime outlined in
Booker is error”). Because Roberts did not object on the basis of
Booker or its predecessors, plain error analysis applies. See
United States v. Olano, 507 U.S. 725, 731 (1993). Pursuant to our
decision in White, under plain error analysis, we will vacate a
sentence because it was imposed under mandatory Guidelines only if
“the record as a whole provides [a] nonspeculative basis for
concluding that the treatment of the guidelines as mandatory
affected the district court’s selection of the sentence imposed.”
405 F.3d at 223 (internal quotation marks omitted). Here, the
record reveals no nonspeculative basis to conclude that the court
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might have imposed a more lenient sentence under advisory
Guidelines. Indeed, the court sentenced Roberts at the middle of
the applicable Guidelines range, imposing a sentence of 212 months,
within the range of 188 to 235 months. Accordingly, pursuant to
White, we must reject Roberts’s challenge to his sentence.
IV.
Pursuant to the foregoing, the judgment of the district court
is affirmed. We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials before
us and argument would not aid in the decisional process.
AFFIRMED
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