ON REHEARING
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4010
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
KHARY JAMAL ANCRUM,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Harrisonburg. Samuel G. Wilson, District
Judge. (CR-02-20-SGW)
Submitted: November 30, 2005 Decided: June 2, 2006
Before WILKINSON and WILLIAMS, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Peter R. Roane, Charlottesville, Virginia, for Appellant. John L.
Brownlee, United States Attorney, William F. Gould, Assistant
United States Attorney, Charlottesville, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Khary Jamal Ancrum appealed his conviction and life
sentence imposed for conspiracy to distribute fifty grams or more
of cocaine base, in violation of 18 U.S.C. §§ 841(a)(1) & 846
(2000). Initially we affirmed Ancrum’s conviction and concluded
that he waived a sentencing issue, which was not raised in the
opening brief. Ancrum filed a petition for panel rehearing arguing
that the court should have reviewed his sentencing issue because it
was raised in a supplemental brief, with permission of the court,
and not in a reply brief as our initial opinion indicated. Ancrum
is correct and we therefore grant his petition for rehearing. Upon
review of the merits of his claim, however, we continue to affirm
his conviction and sentence.
Ancrum’s supplemental brief argued that the district
court did not properly inquire whether Ancrum affirmed or denied
the prior convictions relied upon to enhance his sentence and that
the question of enhanced punishment based upon the prior
convictions should have been submitted to the jury. The Government
filed an information pursuant to 21 U.S.C. § 851 (2000) to
establish Ancrum’s prior convictions. Ancrum had two qualifying
convictions under 21 U.S.C. § 841(b) (2000) and therefore the
statutory minimum sentence was life imprisonment. Ancrum did not
contest any of the qualifying convictions. It appears from the
sentencing transcript that Ancrum filed objections based on
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Blakely v. Washington, 542 U.S. 296 (2004), but the court did not
specifically rule on the objections because resolution would not
impact the statutory minimum sentence. The court did state,
however, that “Blakely would not go to these prior convictions,
even if Blakely were to be applied.” The substance of the
objections is not clear from the record because neither the
presentence report (PSR) nor the objections to the PSR are included
in the joint appendix. Ancrum received the mandatory life
sentence.
The prior conviction issues raised in the supplemental
brief are without merit. At the sentencing hearing, the court
asked if Ancrum would contest his prior convictions and Ancrum’s
attorney confirmed that Ancrum did not challenge his convictions.
Ancrum also did not take the opportunity to address the court at
the close of sentencing. Therefore, the court properly complied
with 21 U.S.C. § 851. See United States v. Campbell, 980 F.2d 245,
252 (4th Cir. 1992) (concluding that a district court has complied
with § 851 if the substantive protections underlying that section
were provided).
Ancrum also argued in his supplemental brief that the
jury should have made the factual determination that he had
qualifying convictions under 21 U.S.C. § 841(b) and therefore his
sentence resulted in Sixth Amendment error. In United States v.
Booker, 543 U.S. 220 (2005), the Supreme Court reaffirmed its prior
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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.” 543 U.S. at 244. This court has
held that the application of the career offender enhancement falls
within the exception for prior convictions where the facts were
undisputed, making it unnecessary to engage in further fact finding
about a prior conviction. United States v. Collins, 412 F.3d 515,
521-23 (4th Cir. 2005); see also Shepard v. United States, 544 U.S.
13, 24-25 (2005) (holding that a court’s inquiry as to disputed
facts in connection with a prior conviction is limited to the terms
of the charging document, a plea agreement, a transcript of the
plea colloquy, or a comparable judicial record).
Although Ancrum was not sentenced as a career offender,
his argument that, under Booker, the district court violated his
Sixth Amendment rights by making impermissible factual findings
when it used his prior convictions to enhance his sentence, is
foreclosed by Collins. Here, Ancrum does not contest the facts
about or of his prior convictions that were used to enhance his
sentence. Moreover, the district court could determine from the
judicial record of Ancrum’s prior drug convictions whether each
offense qualified when enhancing his sentence. As a result, the
issue raised by Ancrum is a purely legal argument that does not
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require speculation regarding facts about the offenses. See United
States v. Cheek, 415 F.3d 349, 350 (4th Cir.) (holding that Sixth
Amendment not violated when sentence enhanced based on prior
convictions that were not charged in indictment or admitted by
defendant), cert. denied, 126 S. Ct. 640 (2005). We therefore
conclude that there was no Sixth Amendment violation in this case.
Accordingly, we continue to affirm the judgment. 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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