UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4132
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
FLORENCE MARIE JOHNSON,
Defendant - Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Charleston. Joseph Robert Goodwin,
District Judge. (2:05-cr-00118-2)
Submitted: August 23, 2006 Decided: September 1, 2006
Before WILLIAMS, MOTZ, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Ann L. Ballard, BALLARD LAW OFFICE, Morgantown, West Virginia, for
Appellant. Charles T. Miller, United States Attorney, W. Chad
Noel, Assistant United States Attorney, Charleston, West Virginia,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Florence Marie Johnson appeals her 120-month sentence
imposed following her guilty plea for conspiracy to distribute five
grams or more of cocaine base, in violation of 21 U.S.C.
§§ 841(a)(1) and 846 (2000). Based on a prior felony drug
conviction, Johnson received the statutory minimum sentence. See
21 U.S.C. §§ 841(b)(1)(B) and 851 (2000). Finding no error, we
affirm.
Johnson claims the district court could have used its
discretionary power to lower the term of imprisonment, as she is
the mother of two young children who will be living with her mother
while she is incarcerated. However, United States v. Booker, 543
U.S. 220 (2005), did not alter the general rule that judges cannot
depart below a statutorily provided minimum sentence. “[A]
district court has no discretion to impose a sentence outside of
the statutory range established by Congress for the offense of
conviction.” United States v. Robinson, 404 F.3d 850, 862 (4th
Cir.), cert. denied, 126 S. Ct. 288 (2005).
While a prerequisite for the mandatory minimum was a
finding that Johnson committed a prior drug felony, Booker does not
preclude proper judicial determination of prior convictions. See
United States v. Cheek, 415 F.3d 349, 352-53 (4th Cir.), cert.
denied, 126 S. Ct. 640 (2005). The district court thus did not err
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in applying the mandatory minimum sentence required by § 841(b)(1)(B).
Accordingly, we 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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