UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 05-4123

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

ROOSEVELT O. MOOD,

Defendant - Appellant.

Appeal from the United States District Court for the District of

South Carolina, at Charleston. David C. Norton, District Judge.

(CR-04-682)

Submitted: November 9, 2005 Decided: December 5, 2005

Before WILKINSON, NIEMEYER, and LUTTIG, Circuit Judges.

Affirmed by unpublished per curiam opinion.

J. Robert Haley, Assistant Federal Public Defender, Charleston,

South Carolina, for Appellant. Jonathan S. Gasser, Acting United

States Attorney, Alston C. Badger, Assistant United States

Attorney, Charleston, South Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

See Local Rule 36(c).
1

Apprendi v. New Jersey, 530 U.S. 466 (2000).

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PER CURIAM:

Roosevelt Orlando Mood pled guilty to a two-count

indictment for possession of a firearm by a convicted felon, in

violation of 18 U.S.C. § 922(g)(1) (2000), and unlawful possession

of body armor, in violation of 18 U.S.C. § 931(a) (2000). He was

sentenced to the statutory mandatory minimum term as an Armed

Career Criminal, under 18 U.S.C. § 924(e)(1) (2000), of onehundred-eighty months of imprisonment on Count One and maximum term

of thirty-six months of imprisonment on Count Two, under 18 U.S.C.

§ 924(a)(7), to run concurrently. Mood appeals his sentence.

Mood challenges the district court’s determination that

he is an Armed Career Criminal and the enhancement of his offense

level because the firearm he possessed was stolen, citing

Blakely v. Washington, 542 U.S. 296 (2004), and Booker v. United

States, 125 S. Ct. 738 (2005). Because Mood preserved these issues

by objecting to the presentence report based upon Blakely, our

review is de novo. See United States v. Mackins, 315 F.3d 399, 405

(4th Cir. 2003) (“If a defendant has made a timely and sufficient

Apprendi[1] sentencing objection in the trial court, and so

preserved his objection, we review de novo.”). When a defendant

preserves a Sixth Amendment error, “we must reverse unless we find

this constitutional error harmless beyond a reasonable doubt, with

the Government bearing the burden of proving harmlessness.” Id.
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(citations omitted); see United States v. White, 405 F.3d 208, 223

(4th Cir. 2005) (discussing difference in burden of proving that

error affected substantial rights under harmless error standard in

Fed. R. App. P. 52(a), and plain error standard in Fed. R. App. P.

52(b)). 

In Booker, the Supreme Court held that the mandatory

manner in which the federal sentencing guidelines required courts

to impose sentencing enhancements based on facts found by the court

by a preponderance of the evidence violated the Sixth Amendment.

125 S. Ct. at 746, 750. The Court remedied the constitutional

violation by severing two statutory provisions, 18 U.S.C.A.

§§ 3553(b)(1), 3742(e) (West 2000 & Supp. 2005), thereby making the

guidelines advisory. United States v. Hughes, 401 F.3d 540, 546

(4th Cir. 2005).

After Booker, courts must calculate the appropriate

guideline range, consider the range in conjunction with other

relevant factors under the guidelines and 18 U.S.C.A. § 3553(a)

(West 2000 & Supp. 2005), and impose a sentence. If a court

imposes a sentence outside the guideline range, the district court

must state its reasons for doing so. Id.

Mood claims on appeal that the district court erred in

sentencing him as an Armed Career Criminal. Mood’s argument is

foreclosed by United States v. Thompson, 421 F.3d 278 (4th Cir.

2005), in which we held that sentencing courts may rely on prior
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convictions to invoke the enhancement provided by § 924(e)(1), even

if the prior convictions were not charged in the indictment or

found by a jury, so long as no facts extraneous to the fact of

conviction need be decided. Id. at 282-83. Mood does not dispute

the fact of the prior convictions or identify any “extraneous

facts” that are relevant to this case. We therefore conclude that

no constitutional error occurred in this case. 

Mood also challenges the district court’s imposition of

a sentence enhancement based on the stolen nature of the firearm

Mood possessed at the time of the offense. We find any error was

harmless because it did not cause Mood to be sentenced above the

mandatory minimum sentence imposed under 18 U.S.C. § 924(e)(1).

See United States v. Robinson, 404 F.3d 850, 862 (4th Cir. 2005)

(“Booker did nothing to alter the rule that judges cannot depart

below a statutorily provided minimum sentence.”). 

Mood also challenges the continued validity of

Almendarez-Torres v. United States, 523 U.S. 224, 244 (1998), in

light of the Supreme Court’s decisions in Apprendi, and its

progeny. The argument is foreclosed by Circuit precedent. See

United States v. Cheek, 415 F.3d 349 (4th Cir. 2005); United States

v. Sterling, 283 F.3d 216, 220 (4th Cir. 2002).

Accordingly, we affirm the district court’s judgment. We

dispense with oral argument because the facts and legal contentions
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are adequately presented in the materials before the court and

argument would not aid the decisional process.

AFFIRMED