US v. Jerome Mason, No. 12-4934 (4th Cir. 2013)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-4934 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JEROME MICHALE MASON, Defendant - Appellant. Appeal from the United States District Court for the Middle District of North Carolina, at Greensboro. William L. Osteen, Jr., Chief District Judge. (1:12-cr-00105-WO-1) Submitted: November 13, 2013 Decided: November 26, 2013 Before MOTZ, AGEE, and THACKER, Circuit Judges. Affirmed by unpublished per curiam opinion. Sarah Jessica Farber, FARBER LAW FIRM, PLLC, Raleigh, North Carolina, for Appellant. Ripley Rand, United States Attorney, Sandra J. Hairston, Assistant United States Attorney, Greensboro, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Jerome judgment Michale sentencing Mason him to appeals 151 the district months court s imprisonment for conspiracy to distribute twenty-eight grams or more of cocaine base, in violation of 21 U.S.C. § 846 (2012). argues that the district court On appeal, Mason improperly applied advisory Guidelines enhancements that were not alleged in the indictment. We affirm. Mason pleaded guilty, agreement, in May 2012. pursuant to a written plea In the presentence report ( PSR ), the probation officer recommended two sentencing enhancements now at issue in this dangerous appeal, weapon and a a two-level two-level increase increase for for possessing a maintaining a premises for the purpose of distributing cocaine base. Sentencing (2011). Guidelines Manual ( USSG ) § 2D1.1(b)(1), See U.S. (b)(12) Mason objected to these enhancements, arguing that the facts alleged in the PSR did not support either enhancement. The district court overruled Mason s objections and sentenced him to 151 months imprisonment. On appeal, Mason argues that the application of both enhancements violates his Sixth Amendment right to a trial by jury as articulated in Alleyne v. United States, 133 S. Ct. 2151 (2013). He contends that any fact that increases the applicable advisory Guidelines range must be alleged in the indictment and 2 proved beyond a reasonable doubt, because the Guidelines form the essential Government starting asserts point that for Alleyne federal is sentencing. inapplicable The because the enhancements did not affect Mason s statutory mandatory minimum sentence. Although Mason objected to the application of these enhancements at sentencing, he argued only that the factual foundation was lacking, not that the enhancements violated his constitutional error. rights. Under establish the that the Therefore, plain-error district our review standard, a court erred, for plain defendant must that is the error plain, and that it affected his substantial rights. was United States v. Robinson, 627 F.3d 941, 954 (4th Cir. 2010) (internal quotation marks and alterations omitted) (citing United States v. Olano, 507 U.S. 725, 734 (1993)). meets this heavy burden, an And even if a defendant appellate court has discretion whether to recognize the error, and should not do so unless the error seriously affects the fairness, integrity or public reputation of judicial proceedings. United States v. Hargrove, 625 (internal F.3d omitted). 170, 184 (4th Cir. 2010) quotation marks Here, the district court did not commit error much less plain error and we therefore affirm its application of the sentencing enhancements. 3 In other than Alleyne, a prior the Supreme conviction, Court that held that increases any the fact, statutory minimum punishment is an element that must be charged in the indictment and proved beyond a reasonable doubt. 2151, 2155, 2162-63 (2013). The Court 133 S. Ct. cautioned that its holding did not disturb judicial factfinding at sentencing for facts that do not impact the statutory punishment. The sentencing enhancements Mason challenges Id. at 2163. affect only the advisory Guidelines calculations and not the statutory mandatory minimum punishment. Therefore, the See district USSG court § 2D1.1(b)(1), did not err (b)(12) in (2011). applying these enhancements. Accordingly, we affirm the district court s judgment. We dispense with oral argument because the facts and legal contentions are adequately presented in the material before this court and argument will not aid the decisional process. AFFIRMED 4