US v. Kevin Fikes, Jr., No. 14-4372 (4th Cir. 2014)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 14-4372 UNITED STATES OF AMERICA, Plaintiff Appellee, v. KEVIN ERIC FIKES, JR., Defendant - Appellant. Appeal from the United States District Court for the Middle District of North Carolina, at Greensboro. N. Carlton Tilley, Jr., Senior District Judge. (1:13-cr-00291-NCT-1) Submitted: October 14, 2014 Before NIEMEYER Circuit Judge. and KING, Decided: Circuit Judges, October 22, 2014 and DAVIS, Senior Affirmed by unpublished per curiam opinion. Louis C. Allen, Federal Public Defender, Greg Davis, Assistant Federal Public Defender, Winston-Salem, North Carolina, for Appellant. Ripley Rand, United States Attorney, Stephen T. Inman, Assistant United States Attorney, Greensboro, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Kevin imprisonment Fikes appeals imposed after his sentence pleading of guilty, 180 months pursuant to a written plea agreement, to one count of possession of a firearm by a felon, in violation of 18 U.S.C. ยงยง 922(g)(1), 924(a)(2) (2012). him an Fikes contends that the district court, in designating armed career criminal, (1) plainly erred because his predicate offenses were neither pleaded in the indictment nor proven to a jury beyond a reasonable doubt; and (2) erred because his predicate offenses were consolidated for judgment. We affirm. Fikes s challenge that the district court should not have sentenced him as an armed career criminal because his predicate offenses were neither pleaded in the indictment nor proven beyond a reasonable doubt was not raised in the district court; we thus review the court s decision for plain United States v. Olano, 507 U.S. 725, 732 (1993). show (1) an affects the error, fairness, judicial proceedings. We (2) have that is plain, (3) or public integrity, which error. Fikes must seriously reputation of Id. at 732-36. reviewed the record district court did not plainly err. and conclude that the [T]he fact of a prior conviction remains a valid enhancement even when not found by the jury. Thompson v. United States, 421 F.3d 278, 282 (4th 2 Cir. 2005); accord Alleyne v. United States, 133 S. Ct. 2151, 2161 (2013). Fikes s next challenge, that the district court should not have sentenced him as an armed career criminal because his predicate offenses were consolidated for judgment, is reviewed de novo. United States v. Brandon, 247 F.3d 186, 188 (4th Cir. 2001). We have reviewed the record and conclude that the district court did not err on these grounds. Predicate offenses need to not separate be tried offenses enhancement. or for sentenced purposes separately of the armed be counted career as criminal United States v. Samuels, 970 F.2d 1312, 1315 (4th Cir. 1992). We therefore affirm the district court s judgment. dispense with contentions are oral argument adequately because presented in the the facts We and legal materials before this court and argument would not aid the decisional process. AFFIRMED 3
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