UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4212
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ANTONIO DEMYROUS HODGES, a/k/a Tone,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. James C. Fox, Senior
District Judge. (CR-04-60)
Submitted: May 24, 2006 Decided: July 19, 2006
Before WILKINSON, NIEMEYER, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
W. James Payne, POWELL & PAYNE, Shallotte, North Carolina, for
Appellant. Frank DeArmon Whitney, United States Attorney, Anne
Margaret Hayes, Assistant United States Attorney, Raleigh, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Antonio Demyrous Hodges appeals his convictions and
aggregate 150-month sentence pursuant to his guilty plea to
conspiracy to possess with intent to distribute more than 500 grams
of cocaine, in violation of 21 U.S.C. § 846 (2000); possession with
intent to distribute more than 200 grams of cocaine, in violation
of 21 U.S.C. § 841(a)(1) (2000); possession of a firearm by a
convicted felon, in violation of 18 U.S.C. § 922(g)(1) (2000); and
possession of ammunition by a convicted felon, in violation of 18
U.S.C. § 922(g)(1) (2000). Finding no error, we affirm.
First, Hodges objected to an upward adjustment to his
base offense level for committing the offenses after having been
convicted of a crime of violence, pursuant to U.S.S.G.
§ 2K1.2(a)(4)(A). Our review is for harmless error. See United
States v. Rodriguez, 433 F.3d 411, 415-16 (4th Cir. 2006). After
reviewing the record, we conclude the district court did not err in
enhancing Hodges’s sentence based on his prior conviction. See
Shepherd v. United States, 544 U.S. 13, ___, 125 S. Ct. 1254, 1262
(2005); Apprendi v. New Jersey, 530 U.S. 466, 490 (2000).
Next, Hodges argues that the district court erred in
applying enhancements based on Hodges’s possession of the firearm
in connection with another crime, and for reckless endangerment
during flight, even though the facts underlying these enhancements
were not alleged in the indictment or found by a jury. The
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district court did not err because Hodges explicitly admitted the
factual basis for these enhancements by stating at sentencing that
“[t]here’s no contest to the factual nature” of the enhancements.
See United States v. Revels,___ F.3d ___, ___ (4th Cir. May 1,
2006) (slip op. at 4) (discussing what constitutes an admission
under United States v. Booker, 543 U.S. 220 (2005)).
Finally, pursuant to Anders v. California, 386 U.S. 738
(1967), counsel for Hodges presents the issue of whether the
Government breached a plea agreement. Hodges has filed a pro se
informal brief, which we have also considered. The record reveals
that there was no plea agreement in this case, and therefore no
breach by the Government.
In accordance with Anders, we have reviewed the entire
record in this case and have found no meritorious issues for
appeal. We therefore affirm Hodges’s convictions and sentence.
However, we deny the Government’s motion for summary affirmance as
such motions are appropriate in “extraordinary cases only.” See
4th Cir. R. 27(f). This court requires that counsel inform Hodges,
in writing, of the right to petition the Supreme Court of the
United States for further review. If Hodges requests that a
petition be filed, but counsel believes that such a petition would
be frivolous, then counsel may move in this court for leave to
withdraw from representation. Counsel’s motion must state that a
copy thereof was served on Hodges.
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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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