UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4322
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
VINCENT LASHAWN BONDS,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Robert J. Conrad, Jr.,
Chief District Judge. (3:04-cr-00227-02)
Submitted: September 25, 2008 Decided: October 10, 2008
Before NIEMEYER, KING, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Sandra J. Barrett, Asheville, North Carolina, for Appellant.
Gretchen C. F. Shappert, United States Attorney, David A. Brown,
Assistant United States Attorney, Charlotte, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Vincent Lashawn Bonds pleaded guilty, without a plea
agreement, to one count of possession of a firearm after having
been convicted of a crime punishable by more than one year of
imprisonment, in violation of 18 U.S.C. § 922(g) (2000). The
district court sentenced Bonds to 188 months of imprisonment. We
affirm.
Bonds first asserts that he received ineffective
assistance of counsel because counsel was unaware of the
superseding indictment that included reference to 18 U.S.C.A.
§ 924(e) (West 2000 & Supp. 2008). Claims of ineffective
assistance of counsel are generally not cognizable on direct
appeal. See United States v. King, 119 F.3d 290, 295 (4th Cir.
1997). Rather, to allow for adequate development of the record, a
defendant must bring his claim in a 28 U.S.C. § 2255 (2000) motion.
See id.; United States v. Hoyle, 33 F.3d 415, 418 (4th Cir. 1994).
An exception exists when the record conclusively establishes
ineffective assistance. United States v. Richardson, 195 F.3d 192,
198 (4th Cir. 1999); King, 119 F.3d at 295. Our review of the
record leads us to conclude that it does not conclusively show that
counsel was ineffective.
A sentencing enhancement based on the defendant’s prior
convictions is not a part of the charge, and need not be included
in the indictment. United States v. Thompson, 421 F.3d 278, 280-84
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(4th Cir. 2005). Thus, counsel’s lack of knowledge of Bonds’
potential armed career criminal status does not constitute
ineffective assistance. Even if counsel’s performance were deemed
deficient, Bonds was not prejudiced, as he was given an opportunity
to withdraw his plea at the start of the sentencing hearing when
the district court acknowledged the error at the plea hearing
regarding Bonds’ status. Bonds elected to proceed with sentencing
with full knowledge of the armed career criminal sentencing
provisions, and thus cannot show that, but for counsel’s
performance, he would have elected to plead not guilty and proceed
to trial. Hill v. Lockhart, 474 U.S. 52, 59 (1985).
Bonds next argues that the district court erred in
sentencing him as an armed career criminal because his prior
convictions should not be considered as separate offenses. Review
of a district court’s application of a statutory sentencing
enhancement is de novo. United States v. Letterlough, 63 F.3d 332,
334 (4th Cir. 1995). Bonds acknowledges this court’s precedent
that was properly applied by the district court, but asserts it
should be reconsidered. Bonds has not provided any persuasive
reason why these decisions should be reconsidered, and “a panel of
this court cannot overrule, explicitly or implicitly, the precedent
set by a prior panel of this court. Only the Supreme Court or this
court sitting en banc can do that.” Scotts Co. v. United Indus.
Corp., 315 F.3d 264, 271-72 n.2 (4th Cir. 2002) (internal quotation
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marks and citations omitted). The district court properly
determined that Bonds was an armed career criminal.
Bonds’ final argument is that the district court erred in
relying on hearsay evidence to enhance his sentence for discharging
a firearm. Although he states his argument as contesting the
factual basis for his conviction, the determination of whether he
discharged the firearm is not an element of the felon-in-possession
offense, but rather a sentencing factor. Bonds notes that,
following Apprendi v. New Jersey, 530 U.S. 466 (2000), any fact,
other than a prior conviction, that increases his sentence beyond
the statutory maximum must be included in the indictment and either
admitted by the defendant or found by the jury. In this case,
based on his status as an armed career criminal, Bonds faced a
maximum sentence of life imprisonment. United States v. Presley,
52 F.3d 64, 70 (4th Cir. 1995). The enhancement for discharging
the firearm thus did not increase his sentence beyond the statutory
maximum.
This court has held that, after United States v. Booker,
543 U.S. 220 (2005), a sentencing court continues to make factual
findings concerning sentencing factors by a preponderance of the
evidence. United States v. Morris, 429 F.3d 65, 72 (4th Cir.
2005). The guidelines provide that “[i]n resolving any dispute
concerning a factor important to the sentencing determination, the
court may consider relevant information without regard to its
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admissibility under the rules of evidence applicable at trial,
provided that the information has sufficient indicia of reliability
to support its probable accuracy.” USSG § 6A1.3(a). This court
has recognized the broad variety of evidence that a district court
may consider in finding sentencing facts, and has allowed even
illegally obtained evidence to be used at sentencing. United
States v. Nichols, 438 F.3d 437, 439-44 (4th Cir. 2006). We
conclude that the district court did not err in determining that
Bonds possessed the firearm in connection with a violent felony,
and properly imposed the enhanced offense level under the armed
career criminal guideline.
Accordingly, we affirm Bonds’ conviction and sentence.
We dispense with oral argument because the facts and legal
conclusions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED
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