UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4771
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ELIJAH CLAY,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at New Bern. Malcolm J. Howard,
District Judge. (CR-04-65)
Submitted: March 29, 2006 Decided: May 9, 2006
Before MICHAEL and KING, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Thomas P. McNamara, Federal Public Defender, G. Alan DuBois,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant. Frank D. Whitney, United States Attorney, Anne M.
Hayes, Jennifer May-Parker, Assistant United States Attorneys,
Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Elijah Clay pled guilty to possession of a firearm by a
convicted felon, 18 U.S.C. § 922(g)(1) (2000), and was sentenced as
an armed career criminal to the statutory minimum term of fifteen
years imprisonment. 18 U.S.C.A. § 924(e) (West 2000 & Supp. 2005).
Clay appeals his sentence, asserting that it violated the Fifth and
Sixth Amendments under Blakely v. Washington, 542 U.S. 296 (2004).
We affirm.
Clay does not dispute that his predicate convictions were
“serious drug offenses” as defined in § 924(e)(2), but he contends
that a jury should determine whether the offenses were “committed
on occasions different from one another,” as required by
§ 924(e)(1). Clay concedes that, in United States v. Thompson, 421
F.3d 278 (4th Cir. 2005), cert. denied, 126 S. Ct. 1463 (2006),
this court held that the Armed Career Criminal Act’s “use of the
term ‘occasion’ requires recourse only to data normally found in
conclusive judicial records, such as the date and location of an
offense, upon which Taylor [v. United States, 595 U.S. 475 (1990)]
and Shepard [v. United States, 544 U.S. 13, 125 S. Ct. 1254 (2005)]
say we may rely.” 421 F.3d at 286. Thus, Thompson holds that a
jury need not find that the prior offenses occurred on different
occasions because “this fact is inherent in the convictions
themselves, and thus is not among the kinds of facts extraneous to
a conviction that Blakely or Shepard requires a jury to find.” Id.
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Because the facts necessary to support Clay’s sentence to the
statutory minimum fifteen-year sentence under § 924(e) were evident
from the “conclusive significance of a prior judicial record,”
Shepard, 125 S. Ct. at 1262-63, no due process or Sixth Amendment
error occurred.
Clay urges us to revisit our decision in Thompson.
However, “a panel of this court cannot overrule, explicitly or
implicitly, the precedent set by a prior panel of this court. Only
the Supreme Court or this court sitting en banc can do that.”
Scotts Co. v. United Indus. Corp., 315 F.3d 264, 271-72 n.2 (4th
Cir. 2002).
We therefore affirm the sentence imposed by the district
court. 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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