UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 03-4924

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

TIMOTHY LEON NOGGIN,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern

District of Virginia, at Richmond. James R. Spencer, District

Judge. (CR-03-237)

Submitted: August 26, 2005 Decided: November 14, 2005

Before MICHAEL, KING, and SHEDD, Circuit Judges.

Affirmed by unpublished per curiam opinion.

J. Paul Gregorio, PAONE & GREGORIO, PLLC, Richmond, Virginia, for

Appellant. Paul J. McNulty, United States Attorney, Michael J.

Elston, Michael C. Wallace, Sr., Assistant United States Attorneys,

Alexandria, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

See Local Rule 36(c).
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PER CURIAM:

Timothy Leon Noggin was convicted on three counts of

distributing cocaine base or “crack.” Counts 2 and 3 were for

distributing five grams or more of the drug. The Government filed

notice under 21 U.S.C. § 851(a)(1) (2000) that it intended to seek

an enhanced sentence because of Noggin’s prior drug convictions.

Noggin was sentenced as a career offender, under U.S. Sentencing

Guidelines Manual § 4B1.1(b)(A) (2003), to 360 months of

imprisonment. Without the career offender designation, Noggin’s

total offense level would have been twenty-eight which, with his

criminal history category of IV, would have given him a guideline

range of 110 to 137 months of imprisonment. Noggin timely

appealed.

On appeal, counsel has filed a brief under Anders v.

California, 386 U.S. 738 (1967), alleging that there are no

meritorious claims on appeal but nevertheless asserting that (1)

the district court erred by allowing hearsay testimony; (2) there

was insufficient evidence to support Noggin’s convictions; (3) the

testimony of the confidential informer was unreliable; and (4) the

district court committed plain error. Noggin’s counsel filed a

supplemental brief challenging his sentence, in light of the

Supreme Court’s opinion in United States v. Booker, 543 U.S.__, 125

S. Ct. 738 (2005). Noggin has filed several pro se supplemental

briefs. For the reasons that follow, we affirm.
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We conclude that none of Noggin’s challenges are

meritorious. First, the district court did not abuse its

discretion by admitting the alleged hearsay evidence regarding

Noggin’s license tag number. See United States v. Mohr, 318 F.3d

613, 618 (4th Cir. 2003) (stating review standard). In any event,

any error was harmless. See Fed. R. Evid. 103(a); Fed. R. Crim. P.

52(a). Second, we conclude that the convictions were supported by

substantial evidence. Glasser v. United States, 315 U.S. 60, 80

(1942); United States v. Burgos, 94 F.3d 849, 862 (4th Cir. 1996).

Next, this court does not review witness credibility. United

States v. Wilson, 118 F.3d 228, 234 (4th Cir. 1997). Finally, our

review of the trial record reveals no plain error. United States

v. Olano, 507 U.S. 725, 731-32 (1993); United States v. Hughes, 401

F.3d 540, 546-56 (4th Cir. 2005).

Neither do we conclude that Noggin’s sentence is

erroneous in light of the Supreme Court’s opinion in Booker. In

that case, the Court held the mandatory manner in which the federal

sentencing guidelines required courts to impose sentencing

enhancements based on facts found by a 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. § 3553(b)(1) (2000) (requiring

courts to impose a sentence within the applicable guideline range),

and 18 U.S.C. § 3742(e) (2000) (setting forth appellate standards
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of review for guideline issues), thereby making the guidelines

advisory. Hughes, 401 F.3d at 546 (citing Booker, 125 S. Ct. at

756-57).

A district court violates the Sixth Amendment when,

acting pursuant to the Sentencing Reform Act and the Guidelines, it

imposes a sentence greater than the maximum authorized by the facts

found by the jury or admitted by the defendant in a guilty plea.

Booker, 125 S. Ct. at 746, 750. The fact of a prior conviction,

however, is an exception to this general rule and need not be

proven to a jury beyond a reasonable doubt. Almendarez-Torres v.

United States, 523 U.S. 224 (1998). The Almendarez-Torres prior

conviction exception was reaffirmed in Booker. See 125 S. Ct. at

756 (“Any fact (other than a prior conviction) which is necessary

to support a sentence exceeding the maximum authorized by the facts

established by a plea of guilty or a jury verdict must be admitted

by the defendant or proved to a jury beyond a reasonable doubt.”).

Here, Noggin was correctly found to be a career offender

based upon the uncontroverted facts of his two prior state drug

distribution charges which were separated by an intervening arrest.

We have held that the application of the career offender

enhancement falls within the exception for prior convictions where

the facts were undisputed, making it unnecessary to engage in

further fact finding about a prior conviction. United States v.

Collins, 412 F.3d 515, 521-23 (4th Cir. 2005). Noggin’s claim is
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foreclosed by Collins, and he does not dispute that he satisfied

the requirements for the career offender enhancement. See United

States v. Harp, 406 F.3d 242, 245, 247-48 (4th Cir. 2005) (citing

USSG § 4B1.1(a) and discussing standard). 

Next, we do not conclude that Noggin’s sentence was

unreasonable under Booker. 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.

§ 3553(a), and impose a sentence; if a court imposes a sentence

outside the guideline range, the district court must state its

reasons for doing so. Hughes, 401 F.3d at 547-48. This remedial

scheme applies to any sentence imposed under the mandatory

guidelines, regardless of whether or not the sentence violates the

Sixth Amendment. Id. at 547 (citing Booker, 125 S. Ct. at 769).

Because Noggin claims for the first time on appeal that

the district court erred in applying the guidelines as mandatory,

his argument is reviewed for plain error. United States v. White,

405 F.3d 208, 215 (4th Cir. 2005). Under this standard, although

the district court committed error in treating the guidelines as

mandatory, see Hughes, 401 F.3d at 547-48, Noggin is not entitled

to relief. We recently held in a plain error context that the

error of sentencing under the mandatory guidelines regime did not

warrant a presumption of prejudice and was not structural error.

White, 405 F.3d at 224. As in White, Noggin cannot carry his
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burden of demonstrating actual prejudice, and we find no

nonspeculative basis on which to conclude that the district court

would have sentenced Noggin to a lower sentence had the court

proceeded under an advisory guideline scheme. Id. at 223. In

fact, analysis of the record provides evidence to the contrary:

the district court made it clear that Noggin deserved the career

offender enhancement.

We have reviewed the pro se issues raised by Noggin and

conclude they are without merit. In accordance with the

requirements of Anders we have reviewed the record and find no

meritorious issues for appeal. Accordingly, we affirm. This court

requires that counsel inform his client, in writing, of his right

to petition the Supreme Court of the United States for further

review. If the client requests that a petition be filed, but

counsel believes that such a petition would be frivolous, then

counsel may move in this court for leave to withdraw from

representation. Counsel’s motion must state that a copy thereof

was served on the client. 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