UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-5026
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
CARL ANTHONY MCDOUGALD,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. James C. Fox, Senior
District Judge. (CR-04-24)
Submitted: January 4, 2006 Decided: February 7, 2006
Before WILKINSON, GREGORY, and DUNCAN, 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Affirmed by unpublished per curiam opinion.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, Christine Witcover Dean, 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Unpublished opinions are not binding precedent in this circuit.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:
Carl Anthony McDougald pled guilty to being a felon in
possession of a weapon in violation of 18 U.S.C. § 922(g) (2000).
McDougald was sentenced to the statutory mandatory minimum term as
an armed career criminal, under 18 U.S.C.A. § 924(e)(1) (West Supp.
2005), to one-hundred-eighty months of imprisonment. On appeal,
McDougald alleges that he should be resentenced in light of the
Supreme Court’s opinion in United States v. Booker, 543 U.S. 220,
125 S. Ct. 738 (2005). For the reasons that follow, we affirm.
McDougald challenges the district court’s determination
that he is an armed career criminal, citing Blakely v. Washington,
542 U.S. 296 (2004), and Booker as support for this argument.
Because McDougald preserved this issue by timely objecting to the
presentence report based upon Blakely, our review is de novo. See
United States v. Mackins, 315 F.3d 399, 405 (4th Cir. 2003) (“If a
defendant has made a timely and sufficient Apprendi[*] sentencing
objection in the trial court, and so preserved his objection, we
review de novo.”). When a defendant preserves a Sixth Amendment
error, “we must reverse unless we find this constitutional error
harmless beyond a reasonable doubt, with the Government bearing the
burden of proving harmlessness.” Id. (citations omitted); see also
United States v. White, 405 F.3d 208, 223 (4th Cir.) (discussing
difference in burden of proving that error affected substantial
*
Apprendi v. New Jersey, 530 U.S. 466 (2000).
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rights under harmless error standard in Fed. R. App. P. 52(a), and
plain error standard in Fed. R. App. P. 52(b)), cert. denied, 126
S. Ct. 668 (2005).
In Booker, the Supreme Court held that the mandatory
manner in which the federal sentencing guidelines required courts
to impose sentencing enhancements based on facts found by the court
by a preponderance of the evidence violated the Sixth Amendment.
125 S. Ct. at 746, 750. The Court remedied the constitutional
violation by severing two statutory provisions, 18 U.S.C.A.
§§ 3553(b)(1), 3742(e) (West 2000 & Supp. 2005), thereby making the
Guidelines advisory. United States v. Hughes, 401 F.3d 540, 546
(4th Cir. 2005). After Booker, courts must calculate the
appropriate Guideline range, consider the range in conjunction with
other relevant factors under the Guidelines and 18 U.S.C.A.
§ 3553(a) (West 2000 & Supp. 2005), and impose a sentence. If a
court imposes a sentence outside the Guideline range, the district
court must state its reasons for doing so. Id.
McDougald’s claim that the district court erred in
sentencing him as an armed career criminal is foreclosed by United
States v. Thompson, 421 F.3d 278 (4th Cir.), petition for cert.
filed (Oct. 25, 2005) (No. 05-7266), in which we held that
sentencing courts may rely on prior convictions to invoke the
enhancement provided by § 924(e)(1), even if the prior convictions
were not charged in the indictment or found by a jury, so long as
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no facts extraneous to the fact of conviction need be decided. Id.
at 282-83. McDougald does not dispute the fact of the prior
convictions or identify any “extraneous facts” that are relevant to
this case. We therefore conclude that no constitutional error
occurred in this case.
McDougald also challenges the continued validity of
Almendarez-Torres v. United States, 523 U.S. 224, 244 (1998), in
light of the Supreme Court’s decisions in Apprendi, and its
progeny. The argument is foreclosed by Circuit precedent. See
United States v. Cheek, 415 F.3d 349 (4th Cir.), cert. denied, 126
S. Ct. 640 (2005); United States v. Sterling, 283 F.3d 216, 220
(4th Cir. 2002).
Finally, McDougald alleges that the district court erred
by considering the Sentencing Guidelines as mandatory. This claim
fails because, as discussed above, his sentence was not enhanced as
a result of the Guidelines. He was sentenced to the statutory
mandatory minimum as an armed career criminal. Furthermore, the
district court announced an identical alternative sentence in the
event the Guidelines were found to be unconstitutional.
Accordingly, we affirm McDougald’s 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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