UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4020
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JAMES HOWARD HARRIS,
Defendant - Appellant.
On Remand from the United States Supreme Court.
(S. Ct. No. 04-8173)
Submitted: February 15, 2006 Decided: March 21, 2006
Before WIDENER, NIEMEYER, and WILLIAMS, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Walter L. Jones, CLIFFORD, CLENDENIN, O’HALE & JONES, LLP,
Greensboro, North Carolina, for Appellant. Anna Mills Wagoner,
United States Attorney, Angela H. Miller, 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Unpublished opinions are not binding precedent in this circuit.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:
This case is before the court on remand from the United
States Supreme Court. We previously affirmed James Howard Harris’
sentence imposed upon his convictions for distribution of an
unspecified quantity of cocaine base, in violation of 21 U.S.C.
§ 841 (2000), and possession of a firearm as a convicted felon, in
violation of 18 U.S.C. §§ 922(g), 924 (2000). United States v.
Harris, No. 04-4020 (4th Cir. Oct. 13, 2004) (unpublished). The
Supreme Court vacated our decision and remanded Harris’ case for
further consideration in light of United States v. Booker, 125 S.
Ct. 738 (2005).
A district court violates the Sixth Amendment when,
acting pursuant to a mandatory application of the Sentencing
Guidelines, it imposes a sentence greater than the maximum
authorized by the facts found by the jury or admitted by the
defendant. Booker, 125 S. Ct. at 746, 750; United States v.
Hughes, 401 F.3d 540, 546 (4th Cir. 2005) (applying Booker on plain
error review). The fact of a prior conviction, however, is an
exception to this general rule and need not be proven to a jury
beyond a reasonable doubt. Almendarez-Torres v. United States, 523
U.S. 224, 233-36 (1998). This exception was reaffirmed in Booker.
Booker, 125 S. Ct. at 756 (“Any fact (other than a prior
conviction) which is necessary to support a sentence . . . must be
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proved to a jury.”); see also United States v. Cheek, 415 F.3d 349,
351-54 (4th Cir.), cert. denied, 126 S. Ct. 640 (2005).
The sentence imposed by the district court does not
violate Harris’ Sixth Amendment rights. First, the indictment to
which Harris pled guilty supports a base offense level of fourteen,
which was increased to twenty-four due to his prior felony
convictions. See U.S. Sentencing Guidelines Manual § 2K2.1(a)(2),
(6) (2002). However, because of Harris’ two prior convictions for
narcotics distribution, he was properly considered a career
offender with an offense level of thirty-two. USSG § 4B1.1. This
offense level combines with Harris’ criminal history category of VI
to yield a recommended sentencing range of 210 to 262 months’
imprisonment.* See USSG Ch. 5, Pt. A, table. The sentence of 151
months’ imprisonment imposed by the district court does not exceed
the sentence authorized by the jury’s verdict. Accordingly, Harris
has demonstrated no Sixth Amendment violation. Moreover, nothing
in the sentencing transcript suggests that the court would have
imposed a different sentence under a non-mandatory application of
the guidelines. See generally United States v. White, 405 F.3d
208, 233 (4th Cir.), cert. denied, 126 S. Ct. 668 (2005).
*
For purposes of the Booker Sixth Amendment analysis, we do
not factor in the acceptance of responsibility adjustment awarded
by the district court. See United States v. Evans, 416 F.3d 298,
300 n.4 (4th Cir. 2005).
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We affirm Harris’ convictions 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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