Filed: Aug. 29, 2005
Latest Update: Mar. 28, 2017
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 04-4291 UNITED STATES OF AMERICA, Plaintiff - Appellee, versus MARTY HERNDON, Defendant - Appellant. Appeal from the United States District Court for the District of South Carolina, at Rock Hill. Matthew J. Perry, Jr., Senior District Judge. (CR-02-933) Submitted: August 17, 2005 Decided: August 29, 2005 Before WILLIAMS, KING, and SHEDD, Circuit Judges. Affirmed by unpublished per curiam opinion. John A. O’Leary, O’LEARY ASSOC
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 04-4291 UNITED STATES OF AMERICA, Plaintiff - Appellee, versus MARTY HERNDON, Defendant - Appellant. Appeal from the United States District Court for the District of South Carolina, at Rock Hill. Matthew J. Perry, Jr., Senior District Judge. (CR-02-933) Submitted: August 17, 2005 Decided: August 29, 2005 Before WILLIAMS, KING, and SHEDD, Circuit Judges. Affirmed by unpublished per curiam opinion. John A. O’Leary, O’LEARY ASSOCI..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4291
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
MARTY HERNDON,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Rock Hill. Matthew J. Perry, Jr., Senior
District Judge. (CR-02-933)
Submitted: August 17, 2005 Decided: August 29, 2005
Before WILLIAMS, KING, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
John A. O’Leary, O’LEARY ASSOCIATES, P.A., Columbia, South
Carolina, for Appellant. J. Strom Thurmond, Jr., United States
Attorney, Jane B. Taylor, Assistant United States Attorney,
Columbia, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Marty Herndon appeals his sentence imposed after a guilty
plea, pursuant to written a plea agreement, for possession with
intent to distribute 5 grams or more of cocaine base, in violation
of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B) (2000). Finding no
error, we affirm Herndon’s conviction and sentence.
Herndon maintains that the district court violated his
Sixth Amendment rights by imposing a sentence enhanced by a
designation of career offender status on facts not alleged in the
indictment, not admitted by him, and not found by a jury beyond a
reasonable doubt. Specifically, Herndon claims that the district
court’s finding that his prior convictions for failing to stop for
a blue light qualified as crimes of violence for determining his
career offender status, under U.S. Sentencing Guidelines Manual
§ 4B1.1 (2002), constituted impermissible judicial fact-finding
under Blakely v. Washington,
542 U.S. 296 (2004). Because this
objection was not raised in the district court, we review for plain
error. See Fed. R. Crim. P. 52(b); United States v. Olano,
507
U.S. 725, 731-32 (1993).
The Supreme Court held in United States v. Booker, 125 S.
Ct. 738, 746, 750 (2005), that the mandatory manner in which the
federal sentencing guidelines required courts to impose sentencing
enhancements based on facts found by the court by a preponderance
of the evidence violated the Sixth Amendment. In Almendarez-
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Torres v. United States,
523 U.S. 224, 233-35 (1998), the Supreme
Court held that the government need not allege in its indictment
and need not prove beyond reasonable doubt that a defendant had
prior convictions for a district court to use those convictions for
purposes of enhancing a sentence.
This court has held in United States v. James,
337 F.3d
387, 391 (4th Cir. 2003), that failure to stop for a blue light is
a “violent felony” under the armed career statute, 18 U.S.C.
§ 924(e)(2)(B)(ii) (2000). Therefore, Herndon has “no legitimate
defense to the career offender designation.” United States v.
Harp,
406 F.3d 242, 247 (4th Cir. 2005).
Accordingly, we deny Herndon’s pro se “Motion Requesting
Permission to File Supplemental Brief in Lieu of Appointed
Counsel’s Ander’s [sic] Brief Filing” as moot and affirm his
conviction and sentence. 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
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