UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4546
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
MICHAEL JUSTIN SMITH,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. James C. Fox, Senior
District Judge. (5:05-cr-00207-F)
Submitted: October 20, 2006 Decided: November 7, 2006
Before WILLIAMS, KING, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Thomas P. McNamara, Federal Public Defender, G. Alan DuBois,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant. George E. B. Holding, Acting 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Unpublished opinions are not binding precedent in this circuit.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:
Michael Justin Smith pled guilty to one count of unlawful
possession of a firearm by a felon, in violation of 18 U.S.C.
§§ 922 (g)(1), 924(e) (West 2000 & Supp. 2006), and was sentenced
to 180 months in prison. On appeal, Smith claims that the district
court’s classification of him as an armed career criminal under the
Armed Career Criminal Act, 18 U.S.C. § 924(e) (West 2000) (“ACCA”),
is unconstitutional under Blakely v. Washington, 542 U.S. 296
(2004), because it was imposed based on prior convictions that were
neither properly alleged in the indictment nor admitted by him.
Finding no error, we affirm.
Because Smith objected to the presentence investigation
report and objected at sentencing to the district court's
classification of him as an armed career criminal, we review de
novo. See United States v. Mackins, 315 F.3d 399, 405 (4th Cir.
2003). When a defendant preserves a Sixth Amendment error, this
court "must reverse unless [it] find[s] this constitutional error
harmless beyond a reasonable doubt, with the Government bearing the
burden of proving harmlessness." Id. (citations omitted).
On appeal, Smith asserts that the indictment to which he
pled guilty was insufficient to support the ACCA enhancement
because it did not list the specific predicate felony convictions.
This argument fails under controlling circuit precedent. In United
States v. Thompson, 421 F.3d 278, 284 n.4 (4th Cir. 2005), cert.
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denied, 126 S. Ct. 1463 (2006), this court held that the indictment
need not reference or list the prior convictions underlying the
enhancement. See also United States v. Cheek, 415 F.3d 349, 352-54
(4th Cir.) (holding that prior convictions used as basis for armed
career criminal sentence need not be charged in indictment or
proven beyond a reasonable doubt), cert. denied, 126 S. Ct. 640
(2005).
Smith also argues that "the application of the ACCA
enhancement is unconstitutional [under Blakely] because it
increased the punishment that Mr. Smith would ordinarily receive
for the offense of conviction [sic]." This argument also fails.
Though many defendants have argued, as Smith does here, that the
prior conviction exception set forth in Almendarez-Torres v. United
States, 523 U.S. 224, 247 (1998), may no longer be good law, see
Shepard v. United States, 544 U.S. 13, 26-28 (2005) (Thomas, J.,
concurring), Booker clearly maintained the prior conviction
exception. See United States v. Booker, 543 U.S. 220, 244 (2005)
("Any fact (other than a prior conviction) which is necessary to
support a sentence . . . must be proved to a jury. . . ."). Sixth
Amendment protections apply only to disputed facts about a prior
conviction that are not evident from "the conclusive significance
of a prior judicial record." Shepard, 544 U.S. at 25.
Moreover, a determination that a defendant is eligible
for sentencing under the ACCA may be based on a judge's
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determination that the predicate convictions are for violent
felonies or drug trafficking crimes if the qualifying facts are
inherent in the predicate convictions and the court is not required
to perform additional fact finding. Thompson, 421 F.3d at 282-83;
see also Cheek, 415 F.3d at 354 (holding that, under the Sixth
Amendment, the fact of a prior conviction need not be submitted to
the jury or admitted by the defendant for it to serve as the basis
for a sentence enhancement).
Accordingly, we affirm Smith’s sentence. 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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