UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4147
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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).
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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,
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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
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