Filed: Nov. 25, 2008
Latest Update: Feb. 12, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-4304 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. BRYAN KEITH UMBERGER, a/k/a Brian Keith Umberger, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of Virginia, at Newport News. Walter D. Kelley, Jr., District Judge. (4:07-cr-00012-WDK-TEM-1) Submitted: November 20, 2008 Decided: November 25, 2008 Before MOTZ and GREGORY, Circuit Judges, and HAMILTON, Senior Circuit Judge.
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-4304 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. BRYAN KEITH UMBERGER, a/k/a Brian Keith Umberger, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of Virginia, at Newport News. Walter D. Kelley, Jr., District Judge. (4:07-cr-00012-WDK-TEM-1) Submitted: November 20, 2008 Decided: November 25, 2008 Before MOTZ and GREGORY, Circuit Judges, and HAMILTON, Senior Circuit Judge. A..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4304
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
BRYAN KEITH UMBERGER, a/k/a Brian Keith Umberger,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Newport News. Walter D. Kelley, Jr.,
District Judge. (4:07-cr-00012-WDK-TEM-1)
Submitted: November 20, 2008 Decided: November 25, 2008
Before MOTZ and GREGORY, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
James S. Ellenson, LAW OFFICE OF JAMES STEPHEN ELLENSON, Newport
News, Virginia, for Appellant. Chuck Rosenberg, United States
Attorney, Jessica M. Norris, Special Assistant United States
Attorney, Newport News, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Bryan Umberger was convicted by a jury of one count of
possession of a firearm by a convicted felon and five counts of
drug possession. He was sentenced to 236 months’ imprisonment.
On appeal, he argues that he was entitled to a jury
determination on the issue of whether his prior felony
convictions were violent felonies for purposes of the Armed
Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e) (2006). He
argues that enhancement of his sentence under the ACCA violated
his Sixth Amendment right to a jury trial.
Umberger’s argument is foreclosed by the precedent of
both the Supreme Court and this court. See James v. United
States, 127 S. Ct. 1586, 1600 (2007) (in construing prior
convictions as violent felonies for purposes of the ACCA, the
court engages in “statutory interpretation, not judicial fact
finding”); Almendarez-Torres v. United States,
523 U.S. 224
(1998) (the Constitution does not require that prior convictions
be alleged in an indictment or proven to a jury beyond a
reasonable doubt in order to be the basis of a sentence
enhancement); United States v. Cheek,
415 F.3d 349 (4th Cir.
2005) (accord). Accordingly, we affirm Umberger’s convictions
and sentence. We dispense with oral argument because the facts
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and legal contentions are adequately presented in the materials
before the court and argument would not aid the decisional
process.
AFFIRMED
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