United States v. Botello

Fourth Circuit

United States v. Botello

219 F. App'x 294

CourtCourt of Appeals for the Fourth Circuit

DecidedMarch 5, 2007

Docket06-4675

StatusUnpublished

This text of 219 F. App'x 294 (United States v. Botello) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fourth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

United States v. Botello, 219 F. App'x 294 (4th Cir. 2007).

Pincite

Opinion

PER CURIAM:

Jose Luis Botello entered a conditional plea of guilty to one count of possession of a firearm by a felon, in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2) (2000). Bo-tello was sentenced by the district court to fifty-five months’ imprisonment. We find no error and affirm Botello’s conviction.

On appeal, Botello contends his predicate state conviction did not satisfy § 922(g)(1) as a matter of law. He reasons that, under North Carolina law, his maximum sentence was less than twelve *295 months because no aggravating factors were either admitted or found by a jury beyond a reasonable doubt. See North Carolina v. Allen, 359 N.C. 425, 615 S.E.2d 256, 265 (2005) (holding, after Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), statutory maximum is the maximum a defendant can face in light of his criminal history and the facts found by a jury or admitted by defendant). However, as Botello concedes, his argument is foreclosed by United States v. Harp, 406 F.3d 242, 246-47 (4th Cir.), cert. denied, — U.S.-, 126 S.Ct. 297, 163 L.Ed.2d 259 (2005), which holds that United States v. Jones, 195 F.3d 205 (4th Cir.1999), is still viable after Blakely and United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), and reaffirms that a prior North Carolina conviction satisfies § 922(g)(1) if any defendant charged with that crime could receive a sentence in excess of one year. Thus, because it is undisputed that a sentence of over twelve months could be imposed on a defendant convicted of possession with intent to distribute marijuana in North Carolina, Botello’s prior conviction was properly considered a predicate felony under § 922(g)(1).

Accordingly, we affirm Botello’s conviction. 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.

Free access — add to your briefcase to read the full text and ask questions with AI

PER CURIAM:

Jose Luis Botello entered a conditional plea of guilty to one count of possession of a firearm by a felon, in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2) (2000). Bo-tello was sentenced by the district court to fifty-five months’ imprisonment. We find no error and affirm Botello’s conviction.

On appeal, Botello contends his predicate state conviction did not satisfy § 922(g)(1) as a matter of law. He reasons that, under North Carolina law, his maximum sentence was less than twelve *295 months because no aggravating factors were either admitted or found by a jury beyond a reasonable doubt. See North Carolina v. Allen, 359 N.C. 425, 615 S.E.2d 256, 265 (2005) (holding, after Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), statutory maximum is the maximum a defendant can face in light of his criminal history and the facts found by a jury or admitted by defendant). However, as Botello concedes, his argument is foreclosed by United States v. Harp, 406 F.3d 242, 246-47 (4th Cir.), cert. denied, — U.S.-, 126 S.Ct. 297, 163 L.Ed.2d 259 (2005), which holds that United States v. Jones, 195 F.3d 205 (4th Cir.1999), is still viable after Blakely and United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), and reaffirms that a prior North Carolina conviction satisfies § 922(g)(1) if any defendant charged with that crime could receive a sentence in excess of one year. Thus, because it is undisputed that a sentence of over twelve months could be imposed on a defendant convicted of possession with intent to distribute marijuana in North Carolina, Botello’s prior conviction was properly considered a predicate felony under § 922(g)(1).

Accordingly, we affirm Botello’s conviction. 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.

Cite This Page — Counsel Stack

Bluebook (online)

219 F. App'x 294, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-botello-ca4-2007.

Opinion

Related

Cite This Page — Counsel Stack