UNPUBLISHED

UNITED STATES COURT OF APPEALS 

FOR THE FOURTH CIRCUIT 

No. 09-4147

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee, 

 v. 

RONALD CHRISTOPHER SANDERS, 

 Defendant - Appellant. 

Appeal from the United States District Court for the District of 

South Carolina, at Florence. Terry L. Wooten, District Judge. 

(4:08-cr-00621-TLW-1) 

Submitted: July 27, 2009 Decided: August 13, 2009 

Before NIEMEYER, MICHAEL, and MOTZ, Circuit Judges. 

Affirmed by unpublished per curiam opinion. 

Michael A. Meetze, Assistant Federal Public Defender, Florence, 

South Carolina; Aileen P. Clare, Research and Writing 

Specialist, Columbia, South Carolina, for Appellant. W. Walter 

Wilkins, United States Attorney, Carrie A. Fisher, Assistant 

United States Attorney, Florence, South Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit. 
PER CURIAM: 

 Ronald Christopher Sanders pled guilty pursuant to a 

written plea agreement to possession of a firearm by a felon, in 

violation of 18 U.S.C. § 922(g)(1) (2006). The district court 

determined the statutory conditions set forth in the Armed 

Career Criminal Act (“ACCA”), see 18 U.S.C. § 924(e) (2006), 

were satisfied and sentenced Sanders to the statutory mandatory 

minimum of 180 months’ imprisonment. Finding no error, we 

affirm. 

 On appeal, Sanders’s counsel asserts that this court 

should apply the doctrine of constitutional avoidance in 

construing the ACCA, thus requiring the Government to allege 

prior convictions in the indictment and prove them beyond a 

reasonable doubt. Under “[t]he canon of constitutional 

avoidance, . . . every reasonable construction must be resorted 

to, in order to save a statute from unconstitutionality.” 

Gonzalez v. Carhart, 550 U.S. 124, 153 (2007) (internal 

quotation marks and citation omitted). However, it “does not 

apply if a statute is not genuinely susceptible to two 

constructions.” Id. at 154. As counsel objected to the 

Government’s failure to allege Sanders’s predicate offenses in 

the indictment, this court’s review is de novo. See United 

States v. Hecht, 470 F.3d 177, 179 (4th Cir. 2006). 

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 Sentencing courts are required to calculate the 

applicable advisory Guidelines range based on appropriate 

findings of fact. Gall v. United States, 552 U.S. 38, __, 128 

S. Ct. 586, 596 (2007). The district court “may accept any 

undisputed portion of the presentence report as a finding of 

fact,” Fed. R. Crim. P. 32(i)(3)(A), and should evaluate the 

sentencing factors based on the preponderance of the evidence, 

see United States v. Harvey, 532 F.3d 326, 337 (4th Cir. 2008). 

Moreover, as acknowledged by counsel, we specifically determined 

in United States v. Cheek, 415 F.3d 349, 352-54 (4th Cir. 2005), 

that prior convictions used as a basis for enhancement under the 

ACCA need not be charged in the indictment nor proven beyond a 

reasonable doubt. 

 Nevertheless, counsel maintains that it is impossible 

to reconcile the pleading requirements of Apprendi v. New 

Jersey, 530 U.S. 466 (2000), with the Supreme Court’s decision 

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

Counsel finds support for this argument from Justice Thomas, who 

opined that the ACCA is unconstitutional as a result of the 

Court’s decision in Apprendi and its progeny, and that the 

decision in Almendarez-Torres is no longer good law. See 

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

concurring in part and concurring in the judgment). However, 

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Justice Thomas’s opinion was not joined by a majority of the 

Justices and is therefore of no precedential value. 

 Equally unavailing is counsel’s contention that Dretke 

v. Haley, 541 U.S. 386 (2004), invited the courts to consider 

application and extension of Almendarez-Torres through the 

doctrine of constitutional avoidance. Dretke simply does not 

stand for this proposition. Moreover, because Almendarez-Torres

has not been overruled, it resolves the constitutional question 

at issue here, leaving nothing to avoid. Therefore, the 

district court properly sentenced Sanders under the ACCA. 

 Accordingly, we affirm the judgment of the district 

court. 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 in the decisional 

process. 

AFFIRMED