UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-5083
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
KEVIN WASHINGTON,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Malcolm J. Howard, Senior
District Judge. (5:05-cr-00251)
Submitted: July 6, 2007 Decided: August 3, 2007
Before MICHAEL, SHEDD, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant. George E. B. Holding, United States Attorney, Anne M.
Hayes, Jennifer P. May-Parker, Assistant United States Attorneys,
Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Kevin Washington was convicted by a jury of one count of
possession of more than fifty grams of cocaine base, in violation
of 21 U.S.C. § 841(a)(1) (2000). In accordance with 21 U.S.C.
§ 841(b)(1)(A) (2000), Washington was sentenced by the district
court to life imprisonment without release. Finding no error, we
affirm.
On appeal, Washington first contends that the district
court abused its discretion in denying his request for a jury
instruction on mere presence. The decision whether to give a jury
instruction, and the content of that instruction, are reviewed for
an abuse of discretion. United States v. Burgos, 55 F.3d 933, 935
(4th Cir. 1995). “This court reviews jury instructions in their
entirety and as part of the whole trial” to determine “‘whether the
court adequately instructed the jury on the elements of the offense
and the accused’s defenses.’” United States v. Bostian, 59 F.3d
474, 480 (4th Cir. 1995) (quoting United States v. Fowler, 932 F.2d
306, 317 (4th Cir. 1991)).
Thus, a district court’s refusal to provide a requested
instruction will only constitute reversible error “if the
instruction: ‘(1) was correct; (2) was not substantially covered by
the court’s charge to the jury; and (3) dealt with some point in
the trial so important, that failure to give the requested
instruction seriously impaired the defendant's ability to conduct
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his defense.’” United States v. Lewis, 53 F.3d 29, 32 (4th Cir.
1995) (quoting United States v. Camejo, 929 F.2d 610, 614 (11th
Cir. 1991)).
Based on the evidence presented at trial, we conclude an
instruction on mere presence was not warranted. The district
court’s jury instructions, viewed in their entirety, adequately
addressed the elements of the offense and relevant definitions.
Therefore, the district court did not abuse its discretion in
refusing to give the requested instruction.
Next, Washington contends his sentence violates the Sixth
Amendment because his prior convictions were found by the district
court rather than submitted to a jury. However, as Washington
concedes, his argument is foreclosed by United States v. Smith, 451
F.3d 209, 224 (4th Cir.), cert. denied, 127 S. Ct. 197 (2006),
which determined that “[b]ecause [21 U.S.C. § 851 (2000)] permits
judicial factfinding on a defendant’s prior convictions, it falls
within the prior conviction exception” to the defendant’s Sixth
Amendment right to trial by jury. Moreover, we have consistently
held that a district court may enhance a sentence based on the
“fact of a prior conviction” regardless of whether or not it was
admitted to by the defendant or found by a jury. United States v.
Thompson, 421 F.3d 278, 282 (4th Cir. 2005), cert. denied, 126 S.
Ct. 1463 (2006).
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Washington finally contends that his sentence of life
imprisonment without release under § 841(b)(1)(A) violates the
Eighth Amendment because it is disproportionate to the offense
committed and deprives him of his right to an individualized
sentence. As conceded by Washington, we have previously considered
and rejected a similar challenge in United States v. Kratsas, 45
F.3d 63 (4th Cir. 1995). In Kratsas, we applied the three-part
test of Solem v. Helm, 463 U.S. 277 (1983),* which examines: “(1)
the gravity of the offense and the harshness of the penalty, (2)
the sentences imposed on other criminals in the same jurisdiction,
and (3) the sentences imposed for commission of the same crime in
other jurisdictions.” Kratsas, 45 F.3d at 66.
Under the first prong of the Solem test, it is clear that
the gravity of Washington’s offense is great. He was not only
found to have possessed with the intent to distribute more than
fifty grams of cocaine base in the instant offense, but has also
been previously convicted of four felony drug offenses. As to the
second and third prongs of the Solem test, this court has
previously held that a life sentence without release for a major
drug violation is not disproportionate in comparison with other
*
Though the applicability of the Solem test was called into
some doubt by the three separate and somewhat conflicting opinions
issued by the Supreme Court in Harmelin v. Michigan, 501 U.S. 957
(1991) (plurality opinion), this court has continued to apply the
Solem test in conducting proportionality review. See Kratsas, 45
F.3d at 67.
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sentences under the Guidelines or sentences imposed by states
within the Fourth Circuit. See id. at 68; see also United States
v. D’Anjou, 16 F.3d 604, 613 (4th Cir. 1994). Thus, we conclude
Washington’s sentence is not constitutionally disproportionate.
Moreover, we conclude Washington’s contention that the mandatory
nature of his sentence renders it unconstitutional is unavailing
under this court’s precedent. See Kratsas, 45 F.3d at 69; see also
D’Anjou, 16 F.3d at 613.
Accordingly, we affirm the judgment of 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 in the decisional process.
AFFIRMED
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