UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4725
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
BRYAN RAY SIMMONS,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. James C. Fox, Senior
District Judge. (CR-04-107)
Submitted: May 17, 2006 Decided: June 7, 2006
Before NIEMEYER, MICHAEL, and MOTZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Thomas P. McNamara, Federal Public Defender, G. Alan DuBois,
Assistant Federal Public Defender, Vidalia V. Patterson, Research
and Writing Attorney, 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Unpublished opinions are not binding precedent in this circuit.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:
Bryan Ray Simmons appeals the 180-month sentence imposed
after he pleaded guilty to one count of possession of a firearm
after having been convicted of a crime punishable by more than one
year of imprisonment, in violation of 18 U.S.C. §§ 922(g), 924
(2000). The district court concluded that Simmons qualified for
sentencing as an armed career criminal pursuant to 18 U.S.C.
§ 924(e) (2000), and sentenced him to the mandatory minimum term of
imprisonment.
On appeal, Simmons asserts that his sentence violates the
Supreme Court’s holding in Blakely v. Washington, 542 U.S. 296
(2005), because his sentence was enhanced based upon facts, his
qualifying prior convictions, that were not alleged in the
indictment, admitted by him, or found by a jury beyond a reasonable
doubt. Simmons does not assert that his prior convictions are not
valid predicates for sentencing as an armed career criminal, but
states only a legal challenge to his sentence.
In United States v. Cheek, 415 F.3d 349 (4th Cir. 2005),
we considered and rejected an argument identical to Simmons’
contentions on appeal. We concluded:
It is thus clear that the Supreme Court continues to
hold that the Sixth Amendment (as well as due process)
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. Even were we to agree with Cheek’s
prognostication that it is only a matter of time before
the Supreme Court overrules Almendarez-Torres, we are not
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free to overrule or ignore the Supreme Court’s
precedents.
Cheek, 415 F.3d at 352-53. Simmons’ argument that this court
should revisit its holding in United States v. Thompson, 421 F.3d
278 (4th Cir. 2005), is without merit, as a panel of this court may
not overrule a prior published decision of the court. See United
States v. Ruhe, 191 F.3d 376, 388 (4th Cir. 1999).
We therefore affirm Simmons’ sentence. We dispense with
oral argument because the facts and legal contentions are
adequately presented in the materials before the courts and
argument would not aid the decisional process.
AFFIRMED
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