UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4009
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
WILLIS LOUIS ALSTON,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. N. Carlton Tilley, Jr.,
Chief District Judge. (CR-04-209)
Submitted: December 30, 2005 Decided: February 7, 2006
Before GREGORY and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Louis C. Allen, III, Federal Public Defender, Eric D. Placke,
Assistant Federal Public Defender, Greensboro, North Carolina, for
Appellant. Anna Mills Wagoner, United States Attorney, Michael A.
DeFranco, Assistant United States Attorney, Greensboro, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Willis Louis Alston pled guilty to possession of a
firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1)
(2000). Alston’s sentencing range under the U.S. Sentencing
Guidelines Manual (2003) was 135 to 168 months in prison. However,
the district court found that Alston qualified as an armed career
criminal based on three prior convictions for drug offenses
punishable by more than a year in prison. Because the statutory
minimum sentence of fifteen years under the Armed Career Criminal
Act, 18 U.S.C.A. § 924(e)(1) (West 2000 & Supp. 2005),1 was greater
than the guideline range, the district court sentenced Alston to
180 months in prison. Alston timely appealed.
The sole issue on appeal is whether the district court
violated the Sixth Amendment by sentencing Alston as an armed
career criminal because his prior offenses were not admitted by
Alston or submitted to a jury.2 Because Alston preserved his Sixth
Amendment challenge by objecting to the presentence report based
upon Blakely v. Washington, 542 U.S. 296 (2004), this court’s
review is de novo. United States v. Mackins, 315 F.3d 399, 405
(4th Cir. 2003). When a defendant preserves a Sixth Amendment
error, this court “must reverse unless [it] find[s] this
1
A person who violates § 922(g)(1) and has three prior
convictions for violent felonies or serious drug offenses
“committed on occasions different from one another” is an armed
career criminal subject to enhanced penalties. 18 U.S.C.A.
§ 924(e)(1); USSG § 4B1.4 (2003).
2
Alston does not challenge the validity of his prior
convictions.
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constitutional error harmless beyond a reasonable doubt, with the
Government bearing the burden of proving harmlessness.” Mackins,
315 F.3d at 405 (citations omitted); see United States v. White,
405 F.3d 208, 223 (4th Cir.) (discussing difference in burden of
proving that error affected substantial 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 United States v. Booker, 543 U.S. 220, 125 S. Ct. 738
(2005), 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. 543
U.S. at ___, 125 S. Ct. at 746, 750 (Stevens, J., opinion of the
Court). The Court remedied the constitutional violation by
severing two statutory provisions, 18 U.S.C.A. § 3553(b)(1) (West
Supp. 2005) (requiring sentencing courts to impose a sentence
within the applicable guideline range), and 18 U.S.C.A. § 3742(e)
(West 2000 & Supp. 2005) (setting forth appellate standards of
review for guideline issues), thereby making the guidelines
advisory. Booker, 543 U.S. at ___, 125 S. Ct. at 756-67 (Breyer,
J., opinion of the Court). The Supreme Court also reaffirmed its
prior holding in Apprendi v. New Jersey, 530 U.S. 466 (2000), that
“[a]ny fact (other than a prior conviction) which is necessary to
support a sentence exceeding the maximum authorized by the facts
established by a plea of guilty or a jury verdict must be admitted
by the defendant or proved to a jury beyond a reasonable doubt.”
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Booker, 543 U.S. at ___, 125 S. Ct. at 756 (Stevens, J., opinion of
the Court).
Alston contends that, under Blakely and Booker, the
district court violated his Sixth Amendment rights by relying on
his prior convictions when those convictions were not admitted by
him or submitted to a jury. We conclude, however, that his claim
is foreclosed by United States v. Thompson, 421 F.3d 278, 283-86
(4th Cir. 2005) (holding that nature and occasion of offenses are
facts inherent in convictions and those facts need not be alleged
in indictment or submitted to jury), petition for cert. filed, ___
U.S.L.W. ___ (U.S. Oct. 25, 2005) (No. 05-7266), and United
States v. Cheek, 415 F.3d 349, 350-51 (4th Cir.) (holding that
application of armed career criminal enhancement falls within
exception for prior convictions where facts were undisputed, making
it unnecessary to engage in further fact finding about a prior
conviction), cert. denied, 126 S. Ct. 640 (2005). We therefore
find no Sixth Amendment error in this case.
Accordingly, we affirm Alston’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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