UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 05-5199

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

WILBUR SCOTT, JR.,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern

District of North Carolina, at Raleigh. James C. Fox, Senior

District Judge. (CR-05-21)

Submitted: August 25, 2006 Decided: October 4, 2006

Before NIEMEYER, GREGORY, and SHEDD, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Thomas P. McNamara, Federal Public Defender, G. Alan DuBois,

Assistant Federal Public Defender, Raleigh, North Carolina, for

Appellant. Frank D. Whitney, United States Attorney, Anne M.

Hayes, Christine Witcover Dean, Assistant United States Attorneys,

Raleigh, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

See Local Rule 36(c).
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PER CURIAM:

Wilbur Scott, Jr., pled guilty to being a felon in

possession of a firearm, in violation of 18 U.S.C. § 922(g)(1)

(2000). Because he had three prior violent felony convictions,

Scott was sentenced, pursuant to the Armed Career Criminal Act, 18

U.S.C. § 924(e) (2000) (“ACCA”), to 180 months’ imprisonment, the

mandatory minimum under that statute. Scott appeals, arguing that

the district court violated his Sixth Amendment rights under United

States v. Booker, 543 U.S. 220 (2005), and Blakely v. Washington,

542 U.S. 296 (2004), by designating him an armed career criminal

and sentencing him pursuant to the ACCA. Because Scott did not

raise a constitutional challenge below, we review under the plain

error standard of Fed. R. Crim. P. 52(b). 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 Rule 52(a) and plain error standard in

Rule 52(b)). 

Scott advances two theories to support his position.

Scott first asserts that the indictment was insufficient because it

did not list the specific predicate felony convictions used to

support his enhanced punishment. This argument fails under

controlling circuit precedent. In United States v. Thompson, 421

F.3d 278, 284 n.4 (4th Cir. 2005), this court ruled that the

indictment need not reference or list the prior convictions
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underlying the enhancement. See also United States v. Cheek, 415

F.3d 349, 352-54 (4th Cir.), cert. denied, 126 S. Ct. 640 (2005).

Scott next argues that the factual findings a court must

make to determine whether a prior conviction counts towards armed

career criminal status involve more than the mere fact of a prior

conviction, and therefore are subject to the requirements of Booker

and Blakely. 

Though many defendants have argued, as Scott does here,

that the prior conviction exception set forth in Almendarez-Torres

v. United States, 523 U.S. 224 (1998), may no longer be good law,

see United States v. Shepard, 544 U.S. 13, 26-28 (2005) (Thomas,

J., concurring), Booker clearly maintained the prior conviction

exception. See Booker, 543 U.S. at 244 (“Any fact (other than a

prior conviction) which is necessary to support a sentence . . .

must be proved to a jury. . . .”). In Shepard, the Supreme Court

held that Sixth Amendment protections apply only to disputed facts

about a prior conviction that are not evident from “the conclusive

significance of a prior judicial record . . . .” 544 U.S. at 25.

Moreover, as we concluded in Thompson, decided post-Shepard, a

determination that a defendant is eligible for sentencing under the

ACCA may be based on a judge’s determination that the predicate

convictions are for violent felonies or drug trafficking crimes if

the qualifying facts are inherent in the predicate convictions and

the court is not required to perform additional fact finding. 421
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F.3d at 283; see also Cheek, 415 F.3d at 354 (holding that, under

the Sixth Amendment, the fact of a prior conviction need not be

submitted to the jury or admitted by the defendant for it to serve

as the basis for a sentence enhancement). 

Faced with this controlling authority, Scott acknowledges

that Thompson runs contrary to his position, but invites this court

to reconsider Thompson. We decline Scott’s invitation and affirm

his conviction and sentence. 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