United States v. Coleman

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 06-4749

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

RODNEY COLEMAN,

Defendant - Appellant.

Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Robert J. Conrad, Jr.,
Chief District Judge. (3:05-cr-00048)

Submitted: July 23, 2007 Decided: August 16, 2007

Before TRAXLER and KING, Circuit Judges, and HAMILTON, Senior
Circuit Judge.

Affirmed by unpublished per curiam opinion.

D. Baker McIntyre, III, Charlotte, North Carolina, for Appellant.
Gretchen C. F. Shappert, United States Attorney, Charlotte, North
Carolina, Amy E. Ray, Assistant United States Attorney, Asheville,
North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

Rodney Coleman pled guilty to unlawful possession of a

firearm by a felon, in violation of 18 U.S.C. §§ 922 (g)(1), 924(e)

(2000), and was sentenced to 180 months in prison. On appeal,

Coleman claims that his classification as an armed career criminal

under the Armed Career Criminal Act, 18 U.S.C. § 924(e) (2000)

(“ACCA”), is unconstitutional under Blakely v. Washington, 542 U.S.

296 (2004), because the classification was imposed based on prior

convictions that were neither alleged in the indictment nor

admitted by him. Finding no error, we affirm.

Coleman’s argument fails under controlling circuit

precedent. See United States v. Thompson, 421 F.3d 278, 284 n.4

(4th Cir. 2005), cert. denied, 547 U.S. 1005 (2006) (holding 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.), cert. denied, 126 S. Ct. 640 (2005)

(holding that prior convictions used as basis for armed career

criminal sentence need not be charged in indictment or proven

beyond a reasonable doubt).

Although Coleman admits the district court sentenced him

in compliance with Almendarez-Torres v. United States, 523 U.S.

224, 247 (1998), he asserts that application of the ACCA

enhancement is unconstitutional because “additional fact-finding by

the sentencing court increased the statutory maximum penalty faced

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by [him]” in violation of Blakely. Though many defendants have

argued that the prior conviction exception set forth in Almendarez-

Torres 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 . . . ."). While a sentencing judge is not

permitted to resolve 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, a determination that a

defendant is eligible for sentencing under the ACCA may be based on

a judge's 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. See 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 Coleman’s sentence. We dispense

with oral argument because the facts and legal contentions are

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adequately presented in the materials before the court and argument

would not aid the decisional process.

AFFIRMED

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