United States v. Hunt

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 10-4063

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

BOBBY RAY HUNT,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern
District of North Carolina, at New Bern. Louise W. Flanagan,
Chief District Judge. (7:09-cr-00034-FL-1)

Submitted: November 17, 2010 Decided: December 8, 2010

Before SHEDD, AGEE, and DAVIS, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Paul K. Sun, Jr., ELLIS & WINTERS, LLP, Raleigh, North Carolina,
for Appellant. George E. B. Holding, United States Attorney,
Jennifer P. May-Parker, Rudy E. Renfer, Assistant United States
Attorneys, Raleigh, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Bobby Ray Hunt pleaded guilty to possession of a

firearm after having previously been convicted of a crime

punishable by a term exceeding one year of imprisonment, in

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

found that Hunt qualified as an armed career criminal pursuant

to 18 U.S.C. § 924(e) (2006), and sentenced Hunt to the

statutory mandatory minimum term of imprisonment of 180 months.

Hunt appeals, challenging the finding that he is an armed career

criminal. Finding no error, we affirm.

Hunt first argues that the district court erred in

finding that he was an armed career criminal based on his prior

North Carolina convictions for possession with intent to deliver

and delivery of controlled substances. Hunt correctly concedes,

however, that his argument is foreclosed by our recent decision

in United States v. McNeill, 598 F.3d 161 (4th Cir. 2010),

petition for cert. filed (U.S. July 2, 2010) (No. 10-5258), and

we may not overrule this court’s binding precedent. United

States v. Simms, 441 F.3d 313, 318 (4th Cir. 2006) (“A decision

of a panel of this court becomes the law of the circuit and is

binding on other panels unless it is overruled by a subsequent

en banc opinion of this court or a superseding contrary decision

of the Supreme Court.” (internal quotation marks and citation

omitted)). Therefore, this claim fails.

2
Hunt next argues that the district court violated his

Fifth and Sixth Amendment rights by sentencing him above the

otherwise-applicable statutory maximum based on his prior

convictions. Again, Hunt correctly concedes that his argument

is foreclosed by binding Supreme Court precedent. See

Apprendi v. New Jersey, 530 U.S. 466, 490 (2000) (“Other than

the fact of a prior conviction, any fact that increases the

penalty for a crime beyond the prescribed statutory maximum must

be submitted to a jury, and proved beyond a reasonable doubt.”);

see also United States v. Cheek, 415 F.3d 349, 352 (4th Cir.

2005) (“[T]he Sixth Amendment (as well as due process) does not

demand that the mere fact of a prior conviction used as a basis

for a sentencing enhancement be pleaded in an indictment and

submitted to a jury for proof beyond a reasonable doubt.”).

Therefore, this claim also fails.

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 the decisional

process.

AFFIRMED