US v. Bobby Ray Hunt, No. 10-4063 (4th Cir. 2010)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-4063 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. BOBBY RAY HUNT, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at New Bern. Louise W. Flanagan, Chief District Judge. (7:09-cr-00034-FL-1) Submitted: November 17, 2010 Decided: December 8, 2010 Before SHEDD, AGEE, and DAVIS, Circuit Judges. Affirmed by unpublished per curiam opinion. Paul K. Sun, Jr., ELLIS & WINTERS, LLP, Raleigh, North Carolina, for Appellant. George E. B. Holding, United States Attorney, Jennifer P. May-Parker, Rudy E. Renfer, Assistant United States Attorneys, Raleigh, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Bobby firearm after punishable by Ray Hunt having a term pleaded previously exceeding guilty been one to possession convicted year of violation of 18 U.S.C. § 922(g)(1) (2006). of of a a crime imprisonment, in The district court found that Hunt qualified as an armed career criminal pursuant to 18 U.S.C. § 924(e) (2006), and sentenced Hunt to the statutory mandatory minimum term of imprisonment of 180 months. Hunt appeals, challenging the finding that he is an armed career criminal. Finding no error, we affirm. Hunt first argues that the district court erred in finding that he was an armed career criminal based on his prior North Carolina convictions for possession with intent to deliver and delivery of controlled substances. Hunt correctly concedes, however, that his argument is foreclosed by our recent decision in United States v. McNeill, 598 F.3d 161 (4th Cir. 2010), petition for cert. filed (U.S. July 2, 2010) (No. 10-5258), and we may not overrule this court s binding precedent. United States v. Simms, 441 F.3d 313, 318 (4th Cir. 2006) ( A decision of a panel of this court becomes the law of the circuit and is binding on other panels unless it is overruled by a subsequent en banc opinion of this court or a superseding contrary decision of the Supreme Court. (internal quotation marks and citation omitted)). Therefore, this claim fails. 2 Hunt next argues that the district court violated his Fifth and Sixth Amendment rights by sentencing him above the otherwise-applicable convictions. is statutory maximum based on his prior Again, Hunt correctly concedes that his argument foreclosed by binding Supreme Court precedent. See Apprendi v. New Jersey, 530 U.S. 466, 490 (2000) ( Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt. ); see also United States v. Cheek, 415 F.3d 349, 352 (4th Cir. 2005) ( [T]he Sixth Amendment (as well as due process) does not demand that the mere fact of a prior conviction used as a basis for a sentencing enhancement be pleaded in an indictment and submitted to a jury for proof beyond a reasonable doubt. ). Therefore, this claim also fails. Accordingly, we affirm the judgment of the district court. legal before We dispense with oral argument because the facts and contentions the court are adequately and argument presented would not in aid the the materials decisional process. AFFIRMED 3
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