UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4061
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
BENJAMIN BOLIN,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Aiken. Margaret B. Seymour, District Judge.
(1:04-cr-00121)
Submitted: August 27, 2007 Decided: September 10, 2007
Before MOTZ, SHEDD, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Katherine E. Evatt, Assistant Federal Public Defender, Columbia,
South Carolina, for Appellant. Reginald I. Lloyd, United States
Attorney, Tara L. McGregor, Assistant United States Attorney,
Columbia, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Benjamin Bolin pleaded guilty to possession of a firearm
after having been convicted of criminal domestic violence in
violation of 18 U.S.C.A. §§ 922(g)(1), 922(g)(9), 924(a), 924(e)
(West 2000 & Supp. 2007); and making a false statement to a federal
firearms dealer in violation of 18 U.S.C. §§ 922(a)(6), 922(g)(1),
924(a)(2)(2000). Bolin appeals, arguing his sentence was
improperly enhanced under the Armed Career Criminal Act (“ACCA”),
18 U.S.C.A. § 924(e) (West 2000 & Supp. 2007). For the reasons
that follow, we affirm.
In the Presentence Report (PSR) prepared prior to
sentencing, the probation officer determined that Bolin qualified
as an armed career offender based on two prior felony convictions
for criminal domestic violence and one prior felony conviction for
failure to stop for a blue light. Bolin objected to the
enhancement, contending that his 1995 and 1996 domestic violence
convictions could not serve as predicate felonies. Bolin argued
that because the felony convictions (third and fourth domestic
violence offenses) were predicated on misdemeanor domestic violence
convictions (first and second offenses) for which he was not
afforded the right to counsel, the 1995 and 1996 convictions could
not result in criminal history points or armed career offender
status. See Alabama v. Shelton, 535 U.S. 654, 662 (2002) (a
suspended or probated sentence that may result in the deprivation
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of liberty in the form of imprisonment may not be imposed unless
the defendant was accorded the right to counsel). The district
court overruled the objection because Bolin was represented by
counsel on the felony charges, and it appeared that only fines were
imposed for the misdemeanor convictions, so Bolin did not have a
right to counsel. See Scott v. Illinois, 440 U.S. 367, 373-74
(1979). The court sentenced Bolin to 180 months, the mandatory
minimum sentence under the ACCA.
Bolin again challenges on appeal the use of his two
criminal domestic violence felony convictions to designate him as
an armed career offender; however, his objection on appeal rests on
an entirely different basis than his objection below. On appeal,
he cites Apprendi v. New Jersey, 530 U.S. 466 (2000), and argues
that the 1995 and 1996 felony convictions could not serve as
predicates for ACCA enhancement because the record does not
establish that the jury found the existence of the underlying
misdemeanor first and second offenses beyond a reasonable doubt.
To the extent that this issue is cognizable, because he raises it
for the first time on appeal, this court’s review is for plain
error.1 See United States v. White, 405 F.3d 208, 215 (4th Cir.),
1
While Bolin relies on Shepard v. United States, 544 U.S. 13,
25 (2005), for support, he appears to ask this court to do what is
not permitted under Shepard — that is, to resolve disputed facts
about a prior conviction that are not evident from the “conclusive
significance of a prior judicial record” in order to reassess his
criminal history.
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cert. denied, 126 S. Ct. 668 (2005). To establish plain error,
Bolin must show that an error occurred, that it was plain, and that
it affected his substantial rights.2 Id.
Bolin asserts that when he was convicted of the criminal
domestic violence felonies, the existence of the prior misdemeanors
was found by the judge at sentencing, under a preponderance of the
evidence standard, rather than by the jury. However, it is not
clear that Bolin’s factual premise is correct. According to the
PSR, the fact of Bolin’s previous domestic violence convictions was
alleged in the felony domestic violence indictments. More
significantly, even assuming Bolin is correct, the fact that the
misdemeanor convictions were found by the judge at sentencing does
not undermine the validity of the felony convictions because the
fact of a prior conviction need not be submitted to a jury and
proved beyond a reasonable doubt. Almendarez-Torres v. United
States, 523 U.S. 224, 233-36, 243-44 (1998); see also United States
v. Cheek, 415 F.3d 349, 351-54 (4th Cir.) (reaffirming continuing
validity of Almendarez-Torres after United States v. Booker, 543
U.S. 220 (2005)), cert. denied, 126 S. Ct. 640 (2005).
Accordingly, we affirm Bolin’s convictions and sentence.
We dispense with oral argument because the facts and legal
2
Although Bolin asserts that the standard of review is de
novo, because the district court did not err under either standard,
the standard of review is not determinative.
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contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED
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