UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4701
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
YPHUONG KPA,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. William L. Osteen, Senior
District Judge. (1:06-cr-00403-WLO)
Submitted: January 10, 2008 Decided: February 29, 2008
Before WILKINSON, TRAXLER, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
C. Scott Holmes, BROCK, PAYNE & MEECE, P.A., Durham, North
Carolina, for Appellant. Anna Mills Wagoner, United States
Attorney, Lisa B. Boggs, Assistant United States Attorney,
Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Yphuong Kpa appeals the 205-month sentence he received
following his guilty plea to possession of a firearm by a convicted
felon, in violation of 18 U.S.C. § 922(g)(1) (2000). The district
court determined that Kpa had been previously convicted of three or
more serious drug offenses or violent felonies and therefore
qualified as an armed career criminal under 18 U.S.C. § 924(e)
(2000). On appeal, Kpa contends that the district court violated
the Double Jeopardy Clause by imposing an enhanced sentence
pursuant to the Armed Career Criminal Act. Finding no error, we
affirm.
While recognizing that recidivist statutes have been
upheld as posing no double jeopardy conflict and that prior
convictions are not required to be found by a jury, Kpa contends
that these principles have been “eroded” by recent Supreme Court
rulings. Accordingly, Kpa asks this court to reconsider whether
convictions that enhance punishment are elements of the crime that
must be included in an indictment and determined by a jury.
Furthermore, Kpa contends that if prior convictions were held to be
elements of the charged offense, it would require a reevaluation of
our double jeopardy jurisprudence with respect to recidivist
statutes.
However, as Kpa concedes, his claims are foreclosed by
Supreme Court and Fourth Circuit precedent. In United States v.
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Presley, 52 F.3d 64, 68 (4th Cir. 1995), this court held that the
Armed Career Criminal Act does not violate the Double Jeopardy
Clause. Furthermore, the fact of a prior conviction need not be
proven beyond a reasonable doubt. See 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, 546 U.S. 1010 (2005).
This court has ruled that the nature and occasion of prior offenses
are facts inherent in the convictions and that the Government is
not required to allege prior convictions in the indictment or
submit proof of them to a jury. See United States v. Thompson, 421
F.3d 278, 285-87 (4th Cir. 2005), cert. denied, 547 U.S. 1005
(2006); see also Shepard v. United States, 544 U.S. 13, 25 (2005).
Therefore, we find that Kpa’s claims are meritless.
Accordingly, we affirm Kpa’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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