UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-5092
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DAVID RAHEEM ANDERSON,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Greenville. Henry F. Floyd, District Judge.
(6:07-cr-00252-HFF-1)
Submitted: March 16, 2009 Decided: March 31, 2009
Before MOTZ and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
David W. Plowden, Assistant Federal Public Defender, Greenville,
South Carolina, for Appellant. Maxwell B. Cauthen, III,
Assistant United States Attorney, Greenville, South Carolina,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
David Raheem Anderson pled guilty to being a felon in
possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1),
924(e) (2006), and was sentenced to the statutory mandatory
minimum term of 180 months’ imprisonment. Counsel for Anderson
has filed this appeal pursuant to Anders v. California, 386 U.S.
738 (1967), arguing there are no meritorious grounds for appeal,
but suggesting the district court erred in sentencing Anderson
pursuant to the Armed Career Criminal Act, 18 U.S.C. § 924(e)
(“ACCA”), because the prior convictions used to support that
designation were not set forth in the indictment. We have
reviewed the record and, finding no error, we affirm.
A defendant convicted of being a felon in possession
of a firearm who has three prior convictions for violent felony
or serious drug offenses is subject to treatment as an armed
career criminal. See 18 U.S.C. § 924(e)(1). A district court
may enhance a sentence based on the “fact of a prior
conviction,” whether or not it was admitted by the defendant or
found by a jury. United States v. Thompson, 421 F.3d 278, 282
(4th Cir. 2005). Therefore, a district court may determine if a
defendant has been convicted of the predicate offenses required
by the ACCA so long as the facts necessary to support the
enhancement “inhere in the fact of conviction” rather than being
“extraneous to it.” Id. at 283.
2
In Almendarez-Torres v. United States, 523 U.S. 224,
242-44 (1998), the Supreme Court held that prior felony
convictions are merely sentencing enhancements rather than
elements of an offense, and need not be charged in an
indictment. Because the Government was not required to charge
Anderson’s prior felony convictions in the indictment, the sole
issue raised in Anderson’s Anders brief fails.
Pursuant to Anders, we have reviewed the entirety of
the record and found no meritorious issues. * The district court
conducted a proper and thorough Fed. R. Crim. P. 11 hearing
prior to accepting Anderson’s guilty plea. The district court
advised Anderson of the rights he was foregoing by pleading
guilty, the charge against him, and the penalties for the
offense. Moreover, at both the Rule 11 hearing and at
sentencing, the district court proceeded with the utmost caution
to ensure that Anderson understood the 180-month statutory
mandatory minimum he faced if sentenced pursuant to the ACCA,
and the district court subsequently sentenced Anderson to that
term.
*
At the direction of the court, the parties provided
supplemental briefing on the issue of whether juvenile
convictions may be used to support the Armed Career Criminal
offender designation. In the supplemental briefs, the parties
agreed that the convictions relied on in Anderson's case were
not juvenile convictions. Therefore, the court need not further
consider this issue.
3
Because there was no error in either the conviction or
sentence, we affirm the district court’s judgment. We require
that counsel inform Anderson, in writing, of the right to
petition the Supreme Court of the United States for further
review. If Anderson requests that a petition be filed, but
counsel believes that such a petition would be frivolous, then
counsel may move in this court for leave to withdraw from
representation. Counsel’s motion must state that a copy thereof
was served on Anderson. We dispense with oral argument because
the facts and legal contentions are adequately set forth in the
materials before the court and argument would not aid the
decisional process.
AFFIRMED
4