UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4379
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
REGINALD DESHAWN STURDIVANT,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. James C. Dever III,
District Judge. (5:06-cr-00242-D)
Submitted: December 19, 2007 Decided: January 15, 2008
Before MICHAEL, MOTZ, and TRAXLER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Thomas P. McNamara, Federal Public Defender, G. Alan DuBois,
Assistant Federal Public Defender, Vidalia Patterson, Research and
Writing Specialist, Raleigh, North Carolina, for Appellant. George
E. B. Holding, United States Attorney, Anne M. Hayes, Banumathi
Rangarajan, Assistant United States Attorneys, Raleigh, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Reginald Deshawn Sturdivant was named in a one-count
indictment charging that, after having been convicted of a crime
punishable by a term of imprisonment exceeding one year, he did
knowingly possess, in and affecting commerce, a firearm, in
violation of 18 U.S.C. §§ 922(g)(1), 924 (2000). Sturdivant
requested a bench trial to preserve the issue of whether his state
conviction qualified as a felony under federal law for purposes of
adjudging him as a felon in possession of a firearm. Sturdivant
stipulated to the possession of the firearm and the interstate
nexus. He also did not contest introduction of the state court
transcript of his guilty plea to the state conviction. Sturdivant
received a 5-6 month sentence for the state offense. Based on
Sturdivant’s state felony drug conviction and this court’s decision
in United States v. Harp, 406 F.3d 242 (4th Cir. 2005), the
district court found him guilty of possession of a firearm by a
felon. Sturdivant received a 46-month sentence and timely noted an
appeal. We affirm.
The question of whether an individual has previously been
convicted of a felony is a legal determination that we review de
novo. United States v. Haynes, 961 F.2d 50, 51 (4th Cir. 1992).
Sturdivant’s sole argument on appeal is that, because he could not
have been sentenced to more than one year for the 2005 drug
conviction under the North Carolina structured sentencing scheme,
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his offense was not “punishable by imprisonment for a term
exceeding one year.” According to Sturdivant, the legal
determination of whether a conviction is punishable by imprisonment
for a term exceeding one year is directly impacted by developing
case law, beginning with Apprendi v. New Jersey, 530 U.S. 466
(2000), and culminating with United States v. Booker, 543 U.S. 220
(2005). Sturdivant asserts that those cases define the parameters
of the Sixth Amendment’s guarantee of a trial by jury as applied to
sentence-enhancing facts, whether characterized as offense elements
or sentence elements.
Under the North Carolina structured sentencing scheme,
Sturdivant received a sentence in the presumptive range for his
2005 drug conviction. Because the offense was a Class I felony,
the aggravated minimum sentence Sturdivant could have received
under the structured sentencing tables was twelve months’
imprisonment. See N.C. Gen. Stat. § 15A-1340.17(c), (d) (1999).
At sentencing for the current federal offense, however, the
district court found Sturdivant’s 2005 conviction was punishable by
more than one year, based on the maximum sentence that could be
imposed for that crime upon any defendant. In other words, the
district court concluded that the offense was punishable by more
than one year based on the maximum aggravated sentence of fifteen
months that could be imposed under the North Carolina structured
sentencing scheme for a defendant with the worst criminal history
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category. This, Sturdivant argues, is precisely what is prohibited
by Apprendi, Blakely v. Washington, 542 U.S. 296 (2004), and
Booker. He claims the aggravating factors are considered elements
of the offense after the line of Supreme Court cases and therefore
finding a crime a felony based on the upper end of a possible
sentence for any defendant is unconstitutional.
Sturdivant’s argument is foreclosed by our decision in
Harp. In Harp, the defendant argued that one of his Armed Career
Criminal Act predicate convictions (possession with intent to
distribute marijuana, a Class I felony) did not qualify as a “crime
punishable by more than one year” because the maximum
“non-aggravated punishment is only twelve months.” Harp, 406 F.3d
at 245, 246. Declining to apply an “individualized analysis,” the
court held that “to determine whether a conviction is a crime
punishable by a prison term exceeding one year . . . we consider
the maximum aggravated sentence that could be imposed for that
crime upon a defendant with the worst possible criminal history.”
Id. at 246.
Sturdivant contends that this interpretation mandates an
increase in punishment based not on the defendant’s actual criminal
history, but the potential criminal history of any person in the
class of people who committed the same crime as the defendant.
Despite Sturdivant’s argument to the contrary, the law in this
Circuit is settled by Harp. Because the statutory maximum penalty
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for Sturdivant’s prior offense exceeded one year of imprisonment,
the offense was a felony under 21 U.S.C. § 841(b)(1)(A) (2000)
warranting the enhanced sentence. We therefore affirm the
conviction.
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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