UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4501
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JESSE LEE CRUDUP,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Terrence W. Boyle,
District Judge. (5:13-cr-00073-BO-1)
Submitted: February 23, 2015 Decided: March 20, 2015
Before WILKINSON, AGEE, and HARRIS, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Brad P. Bennion, East Weymouth, Massachusetts, for Appellant.
Thomas G. Walker, United States Attorney, Jennifer P. May-
Parker, Phillip A. Rubin, Assistant United States Attorneys,
Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Jesse Lee Crudup pled guilty, pursuant to a written plea
agreement, to one count of possession of ammunition by a felon,
in violation of 18 U.S.C. § 922(g) (2012), and was sentenced as
an armed career criminal to 180 months’ imprisonment. He
appeals, arguing: (1) his prior convictions are elements of the
crime that the Government was required to identify in the
indictment and prove beyond a reasonable doubt; (2) the
Government had “an obligation to conduct a criminal history
audit pre-plea agreement to determine if the armed career
criminal act would be applicable”; and (3) the district court
erred in counting prior convictions as separate offenses.
Finding no error, we affirm.
Crudup first argues that the district court erred in
imposing a sentence based on prior convictions that were neither
referenced in the indictment nor proved beyond a reasonable
doubt, citing Alleyne v. United States, ___ U.S.___, 133 S. Ct.
2151 (2013) and Apprendi v. New Jersey, 530 U.S. 466 (2000).
However, Crudup properly concedes that this Court has held that
Alleyne does not overrule Almendarez-Torres v. United States,
523 U.S. 224, 228-35, 239-47 (1998), which removed prior
convictions from the class of facts which must be submitted to a
fact-finder to increase a defendant’s sentence. See United
States v. McDowell, 745 F.3d 115, 124 (4th Cir.) (“Almendarez–
2
Torres remains good law, and we may not disregard it unless and
until the Supreme Court holds to the contrary.”), cert. denied,
__ U.S.L.W. __ (Jan. 12, 2015) (No. 13-10640).
Second, Crudup asserts that the Government was obligated to
conduct a “criminal history audit” prior to entering his guilty
plea. Essentially, Crudup argues that his plea was not knowing
and voluntary because he was unable to make an informed decision
concerning his plea. We find that this claim fails for several
reasons. First, the plea agreement clearly informed Crudup that
he faced the possibility of a 180-month sentence as an armed
career criminal. Second, there is no requirement that the
Government conduct any such “audit” prior to entry of a guilty
plea. And, as Crudup was informed in the plea agreement, the
government may make a sentencing recommendation, but the court
is not bound by any such recommendation or agreement by the
parties. Moreover, because Crudup did not move to withdraw his
guilty plea in the district court or otherwise preserve any
allegation of Fed. R. Crim. P. 11 error, this challenge is
reviewed for plain error. United States v. General, 278 F.3d
389, 393 (4th Cir. 2002). The transcript of Crudup’s guilty
plea hearing establishes that the district court fully complied
with the requirements of Rule 11. Although the court at one
point referenced “career offender,” it correctly identified the
3
statutory mandatory minimum and maximum sentences under the
Armed Career Criminal Act.
Finally, Crudup argues that the district court erred by
counting certain prior convictions as separate offenses where
they were consolidated for sentencing in the state court,
relying on United States v. Davis, 720 F.3d 215 (4th Cir. 2013).
In Davis, this court noted that “when a North Carolina court
consolidates offenses for judgment, the outcome is a single
judgment for which the length of the sentence is controlled by
the maximum sentence for the most serious offense.” Id. at 218.
However, Davis’ holding only applies to the career offender
enhancement, not in the armed career criminal context.
Therefore, we affirm Crudup’s conviction and sentence. We
dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before
this court and argument would not aid the decisional process.
AFFIRMED
4