UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 03-4954
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
STEVEN LAVOUR TWITTY,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Rock Hill. Cameron McGowan Currie, District
Judge. (CR-98-826)
Submitted: January 31, 2006 Decided: February 28, 2006
Before WILLIAMS, MOTZ, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Langdon D. Long, Assistant Federal Public Defender, Columbia, South
Carolina, for Appellant. Jonathan S. Gasser, United States
Attorney, Marshall Prince, Assistant United States Attorney,
Columbia, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Steven Lavour Twitty appeals following a remand to the
district court for resentencing. After considering the issues
raised on appeal, and the impact of the Supreme Court’s decision in
United States v. Booker, 543 U.S. 220, 125 S. Ct. 738 (2005),
decided while this case was pending on this appeal, we affirm the
sentence imposed by the district court on remand.
Twitty pled guilty to one count of possession with intent
to distribute and distribution of an unspecified quantity of
cocaine and cocaine base. He received a sentence of 500 months of
imprisonment to be followed by five years supervised release.
After this court affirmed Twitty’s conviction and sentence, the
Supreme Court granted certiorari and remanded the case for
reconsideration in light of Apprendi v. New Jersey, 530 U.S. 466
(2000). On remand, we concluded that Twitty’s sentence “violate[d]
Apprendi because the indictment charged an unspecified quantity of
drugs and, under 21 U.S.C. § 841(b)(1)(C), he was subject to a
maximum sentence of twenty years,” citing United States v. Promise,
255 F.3d 150, 156 (4th Cir. 2001). United States v. Twitty, 74 F.
App’x 288 (4th Cir. 2003). Therefore, we vacated Twitty’s sentence
and remanded “for imposition of a sentence that does not exceed the
twenty-year maximum of § 841(b)(1)(C).” Id.
On remand, the district court ordered a revised
presentence report and held a new sentencing hearing. Twitty
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sought to reopen issues raised at the first sentencing that had not
been challenged in the first appeal. The district court, after
hearing argument from counsel for both sides and from Twitty,
concluded that such issues could not be revived on remand for
resentencing. The court sentenced Twitty to 240 months of
imprisonment to be followed by three years supervised release, with
a special assessment of $100.
Twitty appealed the sentence. His attorney filed a brief
in accordance with Anders v. California, 386 U.S. 738 (1967),
questioning the propriety of the district court’s refusal to
reconsider Twitty’s objections from his first sentencing, even
though they were not raised in the first appeal or discussed in the
remand from this court. Twitty filed a pro se supplemental brief,
also claiming that legal and factual issues resolved in the first
sentencing but not challenged on appeal should have been
reconsidered.
The mandate rule “forecloses relitigation of issues
expressly or impliedly decided by the appellate court,” as well as
“issues decided by the district court but foregone on appeal.”
United States v. Bell, 5 F.3d 64, 66 (4th Cir. 1993). “[W]here an
issue was ripe for review at the time of an initial appeal but was
nonetheless foregone, the mandate rule generally prohibits the
district court from reopening the issue on remand unless the
mandate can reasonably be understood as permitting it to do so.”
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United States v. Ben Zvi, 242 F.3d 89, 95 (2d Cir. 2001). Here,
Twitty cannot obtain reconsideration of issues he failed to raise
in his first appeal. Therefore, the district court was correct in
strictly limiting its decision on remand to resentencing on the
Apprendi issue.
Twitty also argues that the court should appoint new
appellate counsel to argue that current counsel has rendered
constitutionally ineffective assistance. Claims of ineffective
assistance of counsel generally should be asserted on collateral
review rather than on direct appeal, unless proof of the claimed
ineffective assistance is apparent on the face of the record.
United States v. King, 119 F.3d 290, 295 (4th Cir. 1997). As this
record does not on its face support Twitty’s claim that counsel was
ineffective, we decline to address it in this appeal.
While this case was pending on appeal, the Supreme Court
decided United States v. Booker, 543 U.S. 220, 125 S. Ct. 738
(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.
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
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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 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.” Booker, 543 U.S. at ___, 125 S.
Ct. at 756 (Stevens, J., opinion of the Court).
The parties have filed supplemental briefs addressing the
impact of Booker on this case. In his supplemental brief, counsel
for Twitty contends generally that the sentence imposed in this
case “violates Hughes,”* because it was based on facts found by the
district court. Counsel asserts that Twitty did not admit to the
drug weight used by the court to calculate Twitty’s offense level
or to possession of a firearm used by the court to enhance that
level. He also asserts that Twitty is entitled to have the
district court apply the sentencing factors of 18 U.S.C. § 3553(a),
which might result in a sentence less severe than the 240 month
sentence imposed on remand. Twitty asserts pro se in this court
*
United States v. Hughes, 401 F.3d 540 (4th Cir. 2005).
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that the district court improperly made findings of fact to enhance
his sentence.
We need not address Twitty’s first claim -- that the
district court erred by making findings regarding drug quantity and
firearm possession -- because it properly found him to be a career
offender pursuant to USSG § 4B1.1. Enhancements based on the fact
of prior convictions are excepted from the general holdings in
Apprendi, see 530 U.S. at 490, and Booker, 543 U.S. at __, 125 S.
Ct. at 756. Therefore, as long as the sentencing court does not
look beyond the charging document or certain other limited
documents, see Shepard v. United States, 544 U.S. 13, __, 125 S.
Ct. 1254, 1263 (2005), to identify whether the prior offenses
qualify under the definition of career offender, there is no Sixth
Amendment violation. See United States v. Washington, 404 F.3d
834, 841 (4th Cir. 2005).
In this case, the career offender finding was based on
the fact that (1) Twitty was over eighteen at the time of the
offense of conviction, as he was born in 1969 and the offense
occurred in 1998; (2) the current offense was a controlled
substance felony, a violation of 21 U.S.C. § 841(b)(1)(C); and (3)
Twitty had a prior felony conviction for a controlled substances
offense, a 1990 New Jersey conviction for distributing a controlled
dangerous substance, and a prior felony conviction for a crime of
violence, a 1991 New Jersey conviction for aggravated assault. The
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district court could discern from the charging documents that
distributing a controlled dangerous substance was a controlled
substance offense, and aggravated assault is defined in the
guidelines as a crime of violence. USSG § 4B1.2, comment. (n.1).
“[T]he Sixth Amendment . . . does not demand that the mere fact of
a prior conviction used as a basis for a sentencing enhancement be
pleaded in an indictment and submitted to a jury for proof beyond
a reasonable doubt.” United States v. Cheek, 415 F.3d 349, 354
(4th Cir.), cert. denied, 126 S. Ct. 640 (2005).
The district court’s determination of drug quantity and
use of a firearm did not violate the Sixth Amendment because those
factors did not affect Twitty’s sentence at all. For this
§ 841(b)(1)(C) conviction, which has a statutory maximum sentence
of twenty years, Twitty’s career offender offense level is thirty-
two, USSG § 4B1.1(C), and his criminal history category is VI.
USSG § 4B1.1. These two factors result in a sentencing range of
210-262 months. (USSG Ch. 5, Pt. A (Sentencing Table)). Thus,
based solely on the career offender enhancement, Twitty’s 240-month
sentence did not “exceed the maximum authorized by the facts” that
were properly established and not found by the district court,
United States v. Evans, 416 F.3d 298, 300 n.4 (4th Cir. 2005), and
therefore did not violate his Sixth Amendment rights. United
States v. Collins, 412 F.3d 515, 523-24 (4th Cir. 2005) (“[N]o
Booker Sixth Amendment violation occurred here because Collins’s
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sentence, with the addition of the career offender enhancement,
still would have been the same even if the judge had not made the
finding as to the drug weight.”).
Counsel also claims that Twitty should be resentenced to
allow the district court to consider the sentencing factors of 18
U.S.C.A. § 3553(a) (West 2000 & Supp. 2005). We construe this
claim as a challenge to Twitty’s sentencing under the mandatory
guidelines regime. While the mandatory application of the
guidelines constitutes plain error, United States v. White, 405
F.3d 208, 217 (4th Cir.), cert. denied, 126 S. Ct. 668 (2005), a
defendant who seeks resentencing on this ground must show actual
prejudice, i.e., a “nonspeculative basis for concluding that the
treatment of the guidelines as mandatory ‘affect[ed] the district
court’s selection of the sentence imposed.’” Id. at 223 (quoting
Williams v. United States, 503 U.S. 193, 203 (1992)). Twitty does
not attempt to meet this test and the record does not show that the
district court desired to sentence him below the statutory maximum.
In fact, at resentencing, the district court, directed by this
court to impose “a sentence that does not exceed the twenty-year
maximum of § 841(b)(1)(C),” imposed the maximum possible sentence
of 240 months. As Twitty cannot show prejudice on this issue, he
has failed to establish plain error.
We therefore affirm Twitty’s sentence. Within the
constraints of the mandate rule, we have, as required by Anders,
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reviewed the record and have found no meritorious issues for
appeal. This court requires that counsel inform his client, in
writing, of his right to petition the Supreme Court of the United
States for further review. If the client requests that a petition
be filed, but counsel believes such a petition would be frivolous,
then counsel may move in this court for leave to withdraw from
representation. Counsel’s motion must state that a copy thereof
was served on the client. 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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