UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4472
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DERON FITZGERALD JONES,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Abingdon. James P. Jones, Chief District
Judge. (1:05-cr-00076-jpj)
Submitted: February 28, 2008 Decided: March 19, 2008
Before MOTZ, KING, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Thomas R. Scott, Jr., STREET LAW FIRM, LLP, Grundy, Virginia, for
Appellant. John L. Brownlee, United States Attorney, Zachary T.
Lee, Assistant United States Attorney, Abingdon, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Deron Fitzgerald Jones was convicted of participating in
a conspiracy to possess with intent to distribute and distribute
fifty grams or more of cocaine base (crack) (Count One), 21 U.S.C.
§ 846 (2000), as well as distribution of five grams of crack (Count
Two), fifty grams of crack (Count Three), and an unspecified amount
of crack (Count Four), all in violation of 21 U.S.C.A. § 841(a),
(b) (West 1999 & Supp. 2007). Before trial, the government filed
an information pursuant to 21 U.S.C. § 851 (2000), stating that
Jones had two prior North Carolina convictions for felony
possession of cocaine, each in violation of N.C. Gen. Stat. § 90-
95(d)(2) (LexisNexis 2007). Jones was sentenced to the statutory
minimum sentence of life imprisonment that applied on Counts One
and Three under § 841(b)(1)(A), and to a concurrent statutory
minimum ten-year sentence on Counts Two and Four under
§ 841(b)(1)(B). He appeals his sentence, arguing on various
grounds that the mandatory life sentence was wrongly applied. For
the reasons explained below, we affirm.
Jones first argues that his prior predicate convictions
were for offenses that were not punishable by imprisonment for more
than one year, and thus did not subject him to a mandatory life
sentence. As Jones acknowledges, this claim is reviewed for plain
error because he did not raise it in the district court. United
States v. Olano, 507 U.S. 725, 732-37 (1993).
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Jones’ predicate North Carolina drug convictions were
both Class I felonies under North Carolina law. Jones argues that
neither of the convictions qualifies as a “felony drug offense”
within the meaning of 21 U.S.C.A. § 802(44) (West Supp. 2007)
because, absent aggravating factors which were not found in his
cases, the maximum sentence he could have received was eight months
in the first case and ten months in the second case. However, the
maximum potential sentence for any North Carolina defendant
convicted of a Class I felony is fifteen months. N.C. Gen. Stat.
§ 15A-1340.17(d) (LexisNexis 2007). Jones’ argument is thus
foreclosed by our decision in United States v. Harp, 406 F.3d 242
(4th Cir. 2005). In Harp, we declined, as we did in United States
v. Jones, 195 F.3d 205 (4th Cir. 1999), to apply an “individualized
analysis,” and held that, “to determine whether a conviction is a
crime punishable by a prison term exceeding one year, Jones
dictates that we consider the maximum aggravated sentence that
could be imposed for that crime upon a defendant with the worst
possible criminal history.” Harp, 406 F.3d at 246.
Jones suggests that Jones and Harp were wrongly decided.
However, Harp is controlling law because one panel may not overrule
another. United States v. Simms, 441 F.3d 313, 318 (4th Cir.) (“A
decision of a panel of this court becomes the law of the circuit
and is binding on other panels unless it is overruled by a
subsequent en banc opinion of this court or a superseding contrary
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decision of the Supreme Court.” (internal quotation omitted)),
cert. denied, 127 S. Ct. 233 (2006). Under Harp, the district
court did not err, much less plainly err, in treating the predicate
offenses identified in the § 851 motion as felony drug offenses
that qualified Jones for a statutorily enhanced sentence.
Next, Jones maintains that §§ 841(b)(1)(A) and (b)(1)(B)
create crimes separate from the offenses set out in § 841(a),
rather than penalties for those offenses. Jones argues that the
prior convictions which subjected him to a mandatory life sentence
are elements of the aggravated offense for which he was sentenced.
Relying on Jones v. United States, 526 U.S. 227, 232 (1999), and
Apprendi v. New Jersey, 530 U.S. 466 (2000), that elements of an
offense must be charged in the indictment and proved beyond a
reasonable doubt, Jones contends that, because his prior
convictions were not charged in the indictment or proved beyond a
reasonable doubt, the district court erred in imposing an enhanced
sentence of life imprisonment. The district court’s legal
conclusions, including its interpretation of the sentencing
guidelines, are reviewed de novo. United States v. Allen, 491 F.3d
178, 193 (4th Cir. 2007).
Jones’ claim fails because Apprendi specifically excepted
prior convictions from its holding. See Apprendi, 530 U.S. at 490.
We agree with the district court that, after Apprendi –
[W]hether a statute characterizes a fact as an offense
element or a sentencing factor is largely irrelevant,
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because the practical effect is the same; the fact must
be submitted to the jury if it increases the penalty for
a crime beyond the prescribed statutory maximum.
However, this analysis is inoperative in the context of
a prior conviction. See Almendarez-Torres v. United
States, 523 U.S. 224, 245-47 (1998). Such a fact need
only be submitted to the jury when Congress has
specifically defined prior convictions as an element of
the offense.
Moreover, Apprendi’s exception for sentencing
enhancements based on prior convictions was reaffirmed in United
States v. Booker, 543 U.S. 220 (2005). See United States v. Cheek,
415 F.3d 349, 352 (4th Cir. 2005).
Jones argues that Almendarez-Torres has been effectively
overruled by Apprendi. However, Almendarez-Torres has not been
overruled and may not be ignored. Cheek, 415 F.3d at 352-53.
Morever, the Supreme Court has also held that a mandatory minimum
sentence may be increased based on judge-found facts, unlike a
statutory maximum sentence. Harris v. United States, 536 U.S. 545,
565 (2002). Based on his conviction in this case of two drug
offenses involving at least fifty grams of crack, Jones was subject
to a statutory term of ten years to life under § 841(b)(1)(A). The
district court’s finding that he had been convicted of two prior
felony drug offenses increased only the statutory minimum sentence.
Thus, no error occurred. See United States v. Estrada, 428 F.3d
387, 389-90 (2d Cir. 2005).
Last, Jones argues that a sentence of life imprisonment
without parole based on two prior convictions for cocaine
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possession is disproportionate and violates the Eighth Amendment
prohibition against cruel and unusual punishment. We rejected a
similar challenge in United States v. Kratsas, 45 F.3d 63 (4th Cir.
1995), where 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
Jones’ offense was serious. He was initially arrested on state
drug charges in October 2005 after he sold crack to a confidential
informant, but was released on bond. Approximately two weeks
later, he was arrested again after he was stopped for speeding and
was found to be in possession of crack, scales, over $6000 and
other drug paraphernalia. The evidence at his trial showed that he
had been cooking cocaine into crack and selling crack in Virginia
for six months before his arrest. He had been previously convicted
of two felony drug offenses and numerous other state criminal
offenses. As to the second and third prongs of the Solem test, a
life sentence without release for a major drug violation is not
disproportionate in comparison with other sentences under the
guidelines or sentences imposed by states within the Fourth
Circuit. See United States v. D’Anjou, 16 F.3d 604, 613 (4th Cir.
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1994). Therefore, we conclude that Jones’ sentence is not
constitutionally disproportionate and that he has failed to show an
Eighth Amendment violation.
Accordingly, we affirm the sentence imposed by 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 the decisional process.
AFFIRMED
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