UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4729
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
DELSHON THOMAS HALL,
Defendant - Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Huntington. Robert C. Chambers,
District Judge. (CR-05-20)
Submitted: May 17, 2006 Decided: June 13, 2006
Before WILLIAMS and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Mary Lou Newberger, Federal Public Defender, Jonathan D. Byrne,
Appellate Counsel, David R. Bungard, Assistant Federal Public
Defender, Charleston, West Virginia, for Appellant. Charles T.
Miller, Acting United States Attorney, R. Gregory McVey, Assistant
United States Attorney, Huntington, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Delshon Thomas Hall pled guilty to possession with intent
to distribute at least 5 grams of cocaine base, in violation of 21
U.S.C. § 841 (a)(1)(2000). Because he had a prior drug conviction,
to which he admitted, Hall was sentenced to the statutory mandatory
minimum sentence under 21 U.S.C. § 851 (2000) of 120 months of
imprisonment. On appeal, Hall challenges the constitutionality of
§ 851 after United States v. Booker, 543 U.S. 220 (2005), because
§ 851 allows the government to increase the maximum punishment
without proving the facts supporting the increase to a jury beyond
a reasonable doubt or alleging those facts in an indictment.
We find Hall’s allegation that § 851 is unconstitutional
foreclosed by the prior conviction exception discussed in
Almendarez-Torres v. United States, 523 U.S. 224 (1998), which was
reaffirmed by the Supreme Court in Booker, 543 U.S. at 244 (“Any
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.”).
See also United States v. Cheek, 415 F.3d 349, 351-54 (4th Cir.),
cert. denied, ___ U.S. ___, 126 S. Ct. 640 (2005) (recognizing
continuing validity of prior conviction exception).
Accordingly, we affirm the district court’s judgment. We
dispense with oral argument because the facts and legal contentions
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are adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED
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