UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 05-4663

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

SALITO MARQUES GOOD,

Defendant - Appellant.

Appeal from the United States District Court for the Middle

District of North Carolina, at Durham. Frank W. Bullock, Jr.,

District Judge. (CR-04-330)

Submitted: February 7, 2006 Decided: February 22, 2006

Before MICHAEL, TRAXLER, and DUNCAN, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Brian M. Aus, Durham, North Carolina, for Appellant. Anna Mills

Wagoner, United States Attorney, Lisa B. Boggs, Assistant United

States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Greensboro,

North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

See Local Rule 36(c).
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PER CURIAM:

A jury convicted Salito Marques Good of being a felon in

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

924(e). Adopting the Presentence Report (“PSR”), the district

court found that Good qualified as an “armed career criminal” under

§ 924(e)(1), meaning that he had at least “three previous

convictions . . . for a violent felony or serious drug offense, or

both, committed on occasions different from one another.” Armed

Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e)(1). The ACCA

prescribes a minimum sentence of fifteen years’ imprisonment. The

district court, after considering the advisory guidelines range and

the factors enumerated in 18 U.S.C. § 3553(a), imposed a sentence

of twenty-one years’ imprisonment. Good appeals his sentence,

arguing that the district court erred in sentencing him as an armed

career criminal. Finding no error, we affirm.

I. 

Good was stopped in Greensboro, North Carolina, while

driving his girlfriend’s car and, he admits, “probably speeding.”

J.A. 52. After arresting Good for driving without a license and

speeding, the officer searched the car and found a loaded .22

caliber revolver under the driver’s side floor mat. A grand jury

subsequently indicted Good in the Middle District of North Carolina

for possessing a firearm in commerce after a felony conviction, in
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violation of 18 U.S.C. §§ 922(g)(1) and 924(e). Good stipulated

that, on the date he possessed the firearm, he had one prior felony

conviction that “had not been expunged or set aside,” namely his

2004 conviction for second degree burglary in North Carolina state

court. J.A. 10-11. The federal indictment did not charge, nor did

Good stipulate, that he was an armed career criminal under the

ACCA.

At trial Good admitted to having six prior convictions,

including felony convictions for speeding to elude arrest, common

law robbery, and second degree burglary. The jury found Good

guilty of “the crime charged in the indictment,” the crime of

felon-in-possession. J.A. 95. The jury was never asked to find

whether Good qualified as an armed career criminal under the ACCA,

18 U.S.C. § 924(e)(1), and its corresponding provision in the

Sentencing Guidelines, U.S.S.G. § 4B1.1, comment (n.1). In

calculating the guidelines range, the district court found that

Good qualified as an armed career criminal under these provisions,

thereby enhancing Good’s base offense level from 24 to 33. A

defendant qualifies as an armed career criminal if he has at least

“three previous convictions . . . for a violent felony or serious

drug offense, or both, committed on occasions different from one

another.” 18 U.S.C. § 924(e)(1). Good’s offense level of 33, when

combined with his criminal history category of VI, yielded a

guidelines range of 235 to 293 months. U.S.S.G. Sentencing Table,
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Ch. 5, Pt. A. After considering this range as well as the factors

enumerated in 18 U.S.C. § 3553(a), the district court imposed a

sentence of 252 months.

Prior to sentencing, Good objected to his status as an

armed career criminal on two grounds, arguing (1) that he did not

have the three predicate convictions for “a violent felony or

serious drug offense, or both” and (2) that pursuant to Blakely v.

Washington, 542 U.S. 296 (2004), elements of the ACCA must be

charged in the indictment and either admitted by the defendant or

found by the jury beyond a reasonable doubt. Regarding the first

objection, the PSR listed Good’s six adult convictions without

identifying which three rendered him an armed career criminal under

the ACCA. At the sentencing hearing, the prosecutor clarified that

“in [his] understanding” the three predicate convictions were:

felonious elude of arrest by motor vehicle (2001); felonious common

law robbery (2001); and felonious second degree burglary (2004).

The district court agreed. Good, however, objected to the first of

these three predicates, eluding arrest by motor vehicle, on the

ground that it was not a violent felony for ACCA purposes.

Regarding the second objection, Good conceded at the sentencing

hearing that “the recent decision in the Fourth Circuit . . .

sho[t] [his Blakely] argument in the foot,” no doubt referring to

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

preserved this issue for appeal. J.A. 97-98. 
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Good now appeals his sentence, raising the same two

objections to his ACCA enhancement. We review de novo whether a

prior conviction qualifies as a predicate conviction under §

924(e). See United States v. Williams, 326 F.3d 535, 537 (4th Cir.

2003). We also review de novo whether the enhancement was

unconstitutionally imposed as a matter of law. See United States

v. Thompson, 421 F.3d 278, 280-81 (4th Cir. 2005).

II.

Under the ACCA a “violent felony” is any crime punishable

for a term exceeding one year that “(I) has as an element the use,

attempted use, or threatened use of physical force against the

person of another” or “(ii) is burglary, arson, or extortion,

involves use of explosives, or otherwise involves conduct that

presents a serious potential risk of physical injury to another.”

18 U.S.C. § 924(e)(2)(B). “It is often a question of law whether

a [prior] felony meets the statutory definition of a ‘violent

felony’” because violence is often inherent in the prior crime.

Thompson, 421 F. 3d at 283-84 (internal quotation marks and

citation omitted). Good argues that his prior conviction for

eluding arrest by motor vehicle does not qualify as a predicate

conviction under the ACCA. 

This prior conviction satisfies both requirements,

however. First, the crime charged is punishable by a prison term
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exceeding one year even though Good only received a sentence of six

to eight months’ imprisonment. For ACCA purposes, lengths of

punishment “shall be determined in accordance with the law of the

jurisdiction in which the proceedings were held,” in this case

North Carolina. 18 U.S.C. § 921(a)(20); see also United States v.

Lender, 985 F.2d 151, 156 (4th Cir. 1993). The relevant question

is whether any defendant charged with the crime could receive a

sentence of more than one year, not whether Good in particular did

or could have; we must consider “the maximum aggravated sentence

that could be imposed for that crime upon a defendant with the

worst possible criminal history.” United States v. Harp, 406 F.3d

242, 246 (citing United States v. Jones, 195 F.3d 205, 206-08 (4th

Cir. 1999)). Under North Carolina law at the time that Good that

was convicted (2001), felonious elude of arrest was a class H

felony that carried a maximum of thirty months for defendants with

prior criminal records. N.C. Gen. Stat. § 20-141.5 (1997)

(speeding to elude arrest); N.C. Gen. Stat. § 15A-1340.17(d)(1997)

(felony sentencing); see also State v. Funchess, 141 N.C. App. 302,

309, 540 S.E.2d 435, 439 (N.C. 2000); State v. Mullaney, 129 N.C.

App. 506, 508, 500 S.E.2d 112, 114 (N.C. 1998). The crime thus

meets the first requirement for a “violent felony” under the ACCA.

The crime also meets the second requirement. Although it

is not among the crimes enumerated in § 924(e)(2)(B)(ii), it

satisfies the “otherwise” clause of this provision: the offense in
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abstract, speeding by car to elude arrest, creates a serious

potential risk of injury to others in the car’s path. It is an

active crime that poses an obvious risk of injury. Cf. United

States v. Hairston, 71 F.3d 115, 118 (4th Cir. 1995) (holding that

felony escape from custody in North Carolina constitutes a violent

felony under ACCA given that the “supercharged nature of events

surrounding an escape” presents “an immediate and substantial risk

that the situation will escalate” to one involving physical force

and/or injury) (internal quotation marks and citation omitted). 

Accordingly, we conclude that Good’s prior conviction for

felonious elude of arrest qualifies as a predicate conviction under

the ACCA.

III.

Good also alleges that his ACCA sentence violates his

constitutional rights under Apprendi v. New Jersey, 530 U.S. 466

(2000), Blakely v. Washington, 542 U.S. 296 (2004), and succeeding

cases, most notably United States v. Booker, 543 U.S. 220 (2005).

Because Good was sentenced post-Booker, however, he cannot

establish constitutional error. Under Booker there is no Sixth

Amendment error when a defendant is sentenced under a non-mandatory

guidelines scheme. See United States v. Chau, 426 F.3d 1318, 1323-

34 (11th Cir. 2005) (“[T]he use of extra-verdict enhancements in an

advisory guidelines system is not unconstitutional” under Booker.)
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(internal quotation marks and citation omitted); United States v.

Martins, 413 F.3d 139, 152 (1st Cir. 2005) (“[T]he Sixth Amendment

[under Booker] is not violated simply because a judge finds

sentencing facts under the guidelines; rather, the error is only

that the judge did so pursuant to a mandatory guidelines system.”)

(citing United States v. Antonakopoulos, 399 F.3d 68, 75 (1st Cir.

2005)). Pursuant to Booker’s remedial scheme, the district court

here considered the advisory guidelines range as well as the

factors set forth in 18 U.S.C. § 3553(a) and selected a sentence at

the low end of the range that it considered reasonable.

Even if Good had been sentenced under a mandatory

guidelines scheme, however, he could not show constitutional error

under Blakely or Booker. The Supreme Court has held that prior

convictions, more precisely the fact of prior convictions, may be

used to enhance sentences even if those convictions have not been

found by the jury beyond a reasonable doubt. Almendarez-Torres v.

United States, 523 U.S. 224, 226-27, 243-44 (1998). This

recidivism exception survives Booker intact. 543 U.S. ---, 125 S.

Ct. at 756; see also United States v. Cheek, 415 F.3d 349, 352-53

(4th Cir. 2005) (“It is . . . clear that the Supreme Court

continues to hold that the Sixth Amendment (as well as due process)

does not demand that the mere fact of a prior conviction used as a

basis for sentencing enhancement be pleaded in an indictment and

submitted to a jury for proof beyond a reasonable doubt.”).
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Applying this recidivism exception, we have held that ACCA

enhancements are constitutional under Booker. Specifically, we

have held that sentencing courts, in addition to considering the

fact of prior convictions, can determine as a matter of law whether

these convictions meet the statutory definition of a “violent

felony” under 18 U.S.C. § 924(e) and U.S.S.G. § 4B1.1. See

Thompson, 421 F.3d at 283-87 (finding no Sixth Amendment error when

judge, not jury, found that prior convictions were predicates for

ACCA enhancement because “fact of prior conviction[s]” includes

“essential components” of these convictions, such as date of

offense and whether offense meets statutory definition of “violent

felony”); Cheek, 415 F.3d at 351-53 (upholding constitutionality of

ACCA enhancement). Even if Good had been sentenced under a

mandatory guidelines scheme, he could not demonstrate

constitutional error.

IV.

For the foregoing reasons, we affirm Good’s 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