UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4175
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
KEITH JOVAN BARRETT,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. N. Carlton Tilley, Jr.,
District Judge. (1:07-cr-00223-NCT-1)
Submitted: July 18, 2008 Decided: August 13, 2008
Before WILKINSON, NIEMEYER, and TRAXLER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Louis C. Allen, III, Federal Public Defender, Eric D. Placke,
Assistant Federal Public Defender, Greensboro, North Carolina, for
Appellant. Anna Mills Wagoner, United States Attorney, Michael F.
Joseph, Assistant United States Attorney, Greensboro, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Keith Jovan Barrett pled guilty to one count of
possession of a firearm by a convicted felon, 18 U.S.C. § 922(g)(1)
(2000), and was sentenced to ninety-three months in prison. He now
appeals, contending that his sentence violates the Sixth Amendment
because his advisory Guidelines range was based in part on facts
found by the judge based on a preponderance of the evidence. We
affirm.
Barrett’s probation officer assigned a base offense level
of 14. See U.S. Sentencing Guidelines Manual (“USSG”)
§ 2K2.1(a)(6)(A) (2007). Four levels were added because Barrett
possessed the firearm in connection with another felony offense.
See USSG § 2K2.1(b)(6). Six levels were added because the offense
involved an assault on a law enforcement officer. See USSG
§ 3A1.2(c)(1). Three levels were subtracted based on Barrett’s
acceptance of responsibility. See USSG § 3E1.1. Barrett’s total
offense level was 21, his criminal history category was VI, and his
advisory Guidelines range was 77-96 months in prison.
At sentencing, Barrett objected to the factual
description of the offense in the presentence report (PSR) and to
the enhancements for assault and using the firearm in connection
with another felony. The district court heard testimony from
Officer Joseph Sellers of the Sanford Police Department. Sellers
testified that when he reached to pat down the right side of
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Barrett’s body following a traffic stop, Barrett pulled out a
firearm. The men struggled and fell to the ground. During the
altercation, Barrett said to Sellers, “I’m going to shoot you. I’m
going to kill you.” Barrett fled the scene after Sellers pulled
out his own weapon.
On the basis of this testimony, the district court found
by a preponderance of the evidence that the enhancements applied,
and the court adopted the PSR. Barrett now contends that the
enhancements were erroneously applied because the facts supporting
them were neither admitted by him nor found by a jury beyond a
reasonable doubt. We have held that a district court does not
violate the Sixth Amendment by making such factual findings by a
preponderance of the evidence as long as the factfinding does not
enhance the sentence beyond the maximum term specified in the
statute of conviction. United States v. Morris, 429 F.3d 65, 72
(4th Cir. 2005). See also Rita v. United States, 127 S. Ct. 2456,
2465-66 (2007). Barrett’s sentence does not exceed the ten-year
statutory maximum to which he was subject. See 18 U.S.C.
§ 924(a)(2) (2000).
Barrett’s sentence is procedurally and substantively
reasonable, and the district court did not abuse its discretion in
imposing sentence. See United States v. Gall, 128 S. Ct. 586, 594-
97 (2007) (stating standard of review). Accordingly, we affirm.
We dispense with oral argument because the facts and legal
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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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