UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4663
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
SALITO MARQUES GOOD,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. Frank W. Bullock, Jr.,
District Judge. (CR-04-330)
Submitted: February 7, 2006 Decided: February 22, 2006
Before MICHAEL, TRAXLER, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Brian M. Aus, Durham, North Carolina, for Appellant. Anna Mills
Wagoner, United States Attorney, Lisa B. Boggs, Assistant United
States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Greensboro,
North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
A jury convicted Salito Marques Good of being a felon in
possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and
924(e). Adopting the Presentence Report (“PSR”), the district
court found that Good qualified as an “armed career criminal” under
§ 924(e)(1), meaning that he had at least “three previous
convictions . . . for a violent felony or serious drug offense, or
both, committed on occasions different from one another.” Armed
Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e)(1). The ACCA
prescribes a minimum sentence of fifteen years’ imprisonment. The
district court, after considering the advisory guidelines range and
the factors enumerated in 18 U.S.C. § 3553(a), imposed a sentence
of twenty-one years’ imprisonment. Good appeals his sentence,
arguing that the district court erred in sentencing him as an armed
career criminal. Finding no error, we affirm.
I.
Good was stopped in Greensboro, North Carolina, while
driving his girlfriend’s car and, he admits, “probably speeding.”
J.A. 52. After arresting Good for driving without a license and
speeding, the officer searched the car and found a loaded .22
caliber revolver under the driver’s side floor mat. A grand jury
subsequently indicted Good in the Middle District of North Carolina
for possessing a firearm in commerce after a felony conviction, in
2
violation of 18 U.S.C. §§ 922(g)(1) and 924(e). Good stipulated
that, on the date he possessed the firearm, he had one prior felony
conviction that “had not been expunged or set aside,” namely his
2004 conviction for second degree burglary in North Carolina state
court. J.A. 10-11. The federal indictment did not charge, nor did
Good stipulate, that he was an armed career criminal under the
ACCA.
At trial Good admitted to having six prior convictions,
including felony convictions for speeding to elude arrest, common
law robbery, and second degree burglary. The jury found Good
guilty of “the crime charged in the indictment,” the crime of
felon-in-possession. J.A. 95. The jury was never asked to find
whether Good qualified as an armed career criminal under the ACCA,
18 U.S.C. § 924(e)(1), and its corresponding provision in the
Sentencing Guidelines, U.S.S.G. § 4B1.1, comment (n.1). In
calculating the guidelines range, the district court found that
Good qualified as an armed career criminal under these provisions,
thereby enhancing Good’s base offense level from 24 to 33. A
defendant qualifies as an armed career criminal if he has at least
“three previous convictions . . . for a violent felony or serious
drug offense, or both, committed on occasions different from one
another.” 18 U.S.C. § 924(e)(1). Good’s offense level of 33, when
combined with his criminal history category of VI, yielded a
guidelines range of 235 to 293 months. U.S.S.G. Sentencing Table,
3
Ch. 5, Pt. A. After considering this range as well as the factors
enumerated in 18 U.S.C. § 3553(a), the district court imposed a
sentence of 252 months.
Prior to sentencing, Good objected to his status as an
armed career criminal on two grounds, arguing (1) that he did not
have the three predicate convictions for “a violent felony or
serious drug offense, or both” and (2) that pursuant to Blakely v.
Washington, 542 U.S. 296 (2004), elements of the ACCA must be
charged in the indictment and either admitted by the defendant or
found by the jury beyond a reasonable doubt. Regarding the first
objection, the PSR listed Good’s six adult convictions without
identifying which three rendered him an armed career criminal under
the ACCA. At the sentencing hearing, the prosecutor clarified that
“in [his] understanding” the three predicate convictions were:
felonious elude of arrest by motor vehicle (2001); felonious common
law robbery (2001); and felonious second degree burglary (2004).
The district court agreed. Good, however, objected to the first of
these three predicates, eluding arrest by motor vehicle, on the
ground that it was not a violent felony for ACCA purposes.
Regarding the second objection, Good conceded at the sentencing
hearing that “the recent decision in the Fourth Circuit . . .
sho[t] [his Blakely] argument in the foot,” no doubt referring to
United States v. Cheek, 415 F.3d 349 (4th Cir. 2005), but he
preserved this issue for appeal. J.A. 97-98.
4
Good now appeals his sentence, raising the same two
objections to his ACCA enhancement. We review de novo whether a
prior conviction qualifies as a predicate conviction under §
924(e). See United States v. Williams, 326 F.3d 535, 537 (4th Cir.
2003). We also review de novo whether the enhancement was
unconstitutionally imposed as a matter of law. See United States
v. Thompson, 421 F.3d 278, 280-81 (4th Cir. 2005).
II.
Under the ACCA a “violent felony” is any crime punishable
for a term exceeding one year that “(I) has as an element the use,
attempted use, or threatened use of physical force against the
person of another” or “(ii) is burglary, arson, or extortion,
involves use of explosives, or otherwise involves conduct that
presents a serious potential risk of physical injury to another.”
18 U.S.C. § 924(e)(2)(B). “It is often a question of law whether
a [prior] felony meets the statutory definition of a ‘violent
felony’” because violence is often inherent in the prior crime.
Thompson, 421 F. 3d at 283-84 (internal quotation marks and
citation omitted). Good argues that his prior conviction for
eluding arrest by motor vehicle does not qualify as a predicate
conviction under the ACCA.
This prior conviction satisfies both requirements,
however. First, the crime charged is punishable by a prison term
5
exceeding one year even though Good only received a sentence of six
to eight months’ imprisonment. For ACCA purposes, lengths of
punishment “shall be determined in accordance with the law of the
jurisdiction in which the proceedings were held,” in this case
North Carolina. 18 U.S.C. § 921(a)(20); see also United States v.
Lender, 985 F.2d 151, 156 (4th Cir. 1993). The relevant question
is whether any defendant charged with the crime could receive a
sentence of more than one year, not whether Good in particular did
or could have; we must consider “the maximum aggravated sentence
that could be imposed for that crime upon a defendant with the
worst possible criminal history.” United States v. Harp, 406 F.3d
242, 246 (citing United States v. Jones, 195 F.3d 205, 206-08 (4th
Cir. 1999)). Under North Carolina law at the time that Good that
was convicted (2001), felonious elude of arrest was a class H
felony that carried a maximum of thirty months for defendants with
prior criminal records. N.C. Gen. Stat. § 20-141.5 (1997)
(speeding to elude arrest); N.C. Gen. Stat. § 15A-1340.17(d)(1997)
(felony sentencing); see also State v. Funchess, 141 N.C. App. 302,
309, 540 S.E.2d 435, 439 (N.C. 2000); State v. Mullaney, 129 N.C.
App. 506, 508, 500 S.E.2d 112, 114 (N.C. 1998). The crime thus
meets the first requirement for a “violent felony” under the ACCA.
The crime also meets the second requirement. Although it
is not among the crimes enumerated in § 924(e)(2)(B)(ii), it
satisfies the “otherwise” clause of this provision: the offense in
6
abstract, speeding by car to elude arrest, creates a serious
potential risk of injury to others in the car’s path. It is an
active crime that poses an obvious risk of injury. Cf. United
States v. Hairston, 71 F.3d 115, 118 (4th Cir. 1995) (holding that
felony escape from custody in North Carolina constitutes a violent
felony under ACCA given that the “supercharged nature of events
surrounding an escape” presents “an immediate and substantial risk
that the situation will escalate” to one involving physical force
and/or injury) (internal quotation marks and citation omitted).
Accordingly, we conclude that Good’s prior conviction for
felonious elude of arrest qualifies as a predicate conviction under
the ACCA.
III.
Good also alleges that his ACCA sentence violates his
constitutional rights under Apprendi v. New Jersey, 530 U.S. 466
(2000), Blakely v. Washington, 542 U.S. 296 (2004), and succeeding
cases, most notably United States v. Booker, 543 U.S. 220 (2005).
Because Good was sentenced post-Booker, however, he cannot
establish constitutional error. Under Booker there is no Sixth
Amendment error when a defendant is sentenced under a non-mandatory
guidelines scheme. See United States v. Chau, 426 F.3d 1318, 1323-
34 (11th Cir. 2005) (“[T]he use of extra-verdict enhancements in an
advisory guidelines system is not unconstitutional” under Booker.)
7
(internal quotation marks and citation omitted); United States v.
Martins, 413 F.3d 139, 152 (1st Cir. 2005) (“[T]he Sixth Amendment
[under Booker] is not violated simply because a judge finds
sentencing facts under the guidelines; rather, the error is only
that the judge did so pursuant to a mandatory guidelines system.”)
(citing United States v. Antonakopoulos, 399 F.3d 68, 75 (1st Cir.
2005)). Pursuant to Booker’s remedial scheme, the district court
here considered the advisory guidelines range as well as the
factors set forth in 18 U.S.C. § 3553(a) and selected a sentence at
the low end of the range that it considered reasonable.
Even if Good had been sentenced under a mandatory
guidelines scheme, however, he could not show constitutional error
under Blakely or Booker. The Supreme Court has held that prior
convictions, more precisely the fact of prior convictions, may be
used to enhance sentences even if those convictions have not been
found by the jury beyond a reasonable doubt. Almendarez-Torres v.
United States, 523 U.S. 224, 226-27, 243-44 (1998). This
recidivism exception survives Booker intact. 543 U.S. ---, 125 S.
Ct. at 756; see also United States v. Cheek, 415 F.3d 349, 352-53
(4th Cir. 2005) (“It is . . . clear that the Supreme Court
continues to hold that the Sixth Amendment (as well as due process)
does not demand that the mere fact of a prior conviction used as a
basis for sentencing enhancement be pleaded in an indictment and
submitted to a jury for proof beyond a reasonable doubt.”).
8
Applying this recidivism exception, we have held that ACCA
enhancements are constitutional under Booker. Specifically, we
have held that sentencing courts, in addition to considering the
fact of prior convictions, can determine as a matter of law whether
these convictions meet the statutory definition of a “violent
felony” under 18 U.S.C. § 924(e) and U.S.S.G. § 4B1.1. See
Thompson, 421 F.3d at 283-87 (finding no Sixth Amendment error when
judge, not jury, found that prior convictions were predicates for
ACCA enhancement because “fact of prior conviction[s]” includes
“essential components” of these convictions, such as date of
offense and whether offense meets statutory definition of “violent
felony”); Cheek, 415 F.3d at 351-53 (upholding constitutionality of
ACCA enhancement). Even if Good had been sentenced under a
mandatory guidelines scheme, he could not demonstrate
constitutional error.
IV.
For the foregoing reasons, we affirm Good’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
9