United States v. Sutton

215 F. App'x 304

Opinion

PER CURIAM:

Jimmie Archibald Sutton pled guilty to being a felon in possession of a weapon in violation of 18 U.S.C. § 922(g) (2000). The district court sentenced Sutton to 185 months of imprisonment based on the finding that he was an armed career criminal because he had at least three previous convictions for violent felonies or serious drug offenses. See 18 U.S.C.A. § 924(e) (West 2000 & Supp.2006); U.S. Sentencing Guidelines Manual (“USSG”) § 4B1.4 (2005).

On appeal, counsel argues that the district court’s finding that Sutton was an armed career criminal, absent Sutton admitting or a jury finding that he had at least three previous violent felonies or serious drug offenses, violates the Supreme Court’s opinion in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). In his brief, however, Sutton’s counsel concedes that this court has rejected this argument. United States v. Cheek, 415 F.3d 349, 352-53 (4th Cir.), cert, denied, — U.S.-, 126 S.Ct. 640, 163 L.Ed.2d 518 (2005); see Almendarez-Torres v. United States, 523 U.S. 224, 233-35, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998).

The Government has filed a motion for summary affirmance citing the opinions in Almendarez-Torres and Cheek. Sutton’s counsel has filed a response to the motion, stating that he has no objections. Accordingly, we grant the motion and affirm Sutton’s 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.