United States v. Sanders

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 09-4147

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

RONALD CHRISTOPHER SANDERS,

Defendant - Appellant.

Appeal from the United States District Court for the District of
South Carolina, at Florence. Terry L. Wooten, District Judge.
(4:08-cr-00621-TLW-1)

Submitted: July 27, 2009 Decided: August 13, 2009

Before NIEMEYER, MICHAEL, and MOTZ, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Michael A. Meetze, Assistant Federal Public Defender, Florence,
South Carolina; Aileen P. Clare, Research and Writing
Specialist, Columbia, South Carolina, for Appellant. W. Walter
Wilkins, United States Attorney, Carrie A. Fisher, Assistant
United States Attorney, Florence, South Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

Ronald Christopher Sanders pled guilty pursuant to a

written plea agreement to possession of a firearm by a felon, in

violation of 18 U.S.C. § 922(g)(1) (2006). The district court

determined the statutory conditions set forth in the Armed

Career Criminal Act (“ACCA”), see 18 U.S.C. § 924(e) (2006),

were satisfied and sentenced Sanders to the statutory mandatory

minimum of 180 months’ imprisonment. Finding no error, we

affirm.

On appeal, Sanders’s counsel asserts that this court

should apply the doctrine of constitutional avoidance in

construing the ACCA, thus requiring the Government to allege

prior convictions in the indictment and prove them beyond a

reasonable doubt. Under “[t]he canon of constitutional

avoidance, . . . every reasonable construction must be resorted

to, in order to save a statute from unconstitutionality.”

Gonzalez v. Carhart, 550 U.S. 124, 153 (2007) (internal

quotation marks and citation omitted). However, it “does not

apply if a statute is not genuinely susceptible to two

constructions.” Id. at 154. As counsel objected to the

Government’s failure to allege Sanders’s predicate offenses in

the indictment, this court’s review is de novo. See United

States v. Hecht, 470 F.3d 177, 179 (4th Cir. 2006).

2
Sentencing courts are required to calculate the

applicable advisory Guidelines range based on appropriate

findings of fact. Gall v. United States, 552 U.S. 38, __, 128

S. Ct. 586, 596 (2007). The district court “may accept any

undisputed portion of the presentence report as a finding of

fact,” Fed. R. Crim. P. 32(i)(3)(A), and should evaluate the

sentencing factors based on the preponderance of the evidence,

see United States v. Harvey, 532 F.3d 326, 337 (4th Cir. 2008).

Moreover, as acknowledged by counsel, we specifically determined

in United States v. Cheek, 415 F.3d 349, 352-54 (4th Cir. 2005),

that prior convictions used as a basis for enhancement under the

ACCA need not be charged in the indictment nor proven beyond a

reasonable doubt.

Nevertheless, counsel maintains that it is impossible

to reconcile the pleading requirements of Apprendi v. New

Jersey, 530 U.S. 466 (2000), with the Supreme Court’s decision

in Almendarez-Torres v. United States, 523 U.S. 224 (1998).

Counsel finds support for this argument from Justice Thomas, who

opined that the ACCA is unconstitutional as a result of the

Court’s decision in Apprendi and its progeny, and that the

decision in Almendarez-Torres is no longer good law. See

Shepard v. United States, 544 U.S. 13, 26-28 (2005) (Thomas, J.,

concurring in part and concurring in the judgment). However,

3
Justice Thomas’s opinion was not joined by a majority of the

Justices and is therefore of no precedential value.

Equally unavailing is counsel’s contention that Dretke

v. Haley, 541 U.S. 386 (2004), invited the courts to consider

application and extension of Almendarez-Torres through the

doctrine of constitutional avoidance. Dretke simply does not

stand for this proposition. Moreover, because Almendarez-Torres

has not been overruled, it resolves the constitutional question

at issue here, leaving nothing to avoid. Therefore, the

district court properly sentenced Sanders under the ACCA.

Accordingly, we affirm the judgment of 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 in the decisional

process.

AFFIRMED