United States v. Burgess

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 04-4675

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

ANTHONY BURGESS,

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-04-83)

Submitted: January 25, 2006 Decided: March 1, 2006

Before WILKINSON, TRAXLER, and GREGORY, Circuit Judges.

Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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:

Anthony Burgess appeals his 135-month sentence following

his guilty plea, pursuant to a plea agreement, to one count of

felon in possession of a firearm in violation of 18 U.S.C.

§ 922(g)(1) (2000). We affirm.

On appeal, Burgess first argues that his designation as

an armed career criminal for sentencing purposes violates the Sixth

Amendment as set forth in Blakely v. Washington, 542 U.S. 296

(2004). His argument is foreclosed by this court’s decision in

United States v. Thompson, 421 F.3d 278 (4th Cir. 2005), pet. for

cert. filed, __ U.S.L.W. __ (U.S. Oct. 25, 2005) (No. 05-7266).

Burgess does not dispute he has at least three prior convictions

qualifying as “violent felonies” and that they were “committed on

occasions different from one another.” See 18 U.S.C. § 924(e)

(2000). Because the facts necessary to support the enhancement

under USSG § 4B1.4(b)(3)(B) “inhere in the fact of conviction,”

there is no error under Blakely, United States v. Booker, 543 U.S.

220, 125 S. Ct. 738 (2005), or their progeny. See Thompson, 421

F.3d at 283, 287 & n.5; see also United States v. Cheek, 415 F.3d

349 (4th Cir. 2005) (holding that the armed career criminal

designation based on prior convictions does not violate Booker),

cert. denied, 126 S. Ct. 640 (2005).

Burgess also claims that the calculation of his criminal

history category violates the Sixth Amendment under Blakely. This

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argument is foreclosed by the Supreme Court’s decision in Booker

where the Court applied Blakely to the federal sentencing

guidelines stating, “[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.” Booker, 543 U.S. at ___, 125 S. Ct. at

756.

Accordingly, we affirm Burgess’ conviction and 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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