UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 03-4954

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

STEVEN LAVOUR TWITTY,

Defendant - Appellant.

Appeal from the United States District Court for the District of

South Carolina, at Rock Hill. Cameron McGowan Currie, District

Judge. (CR-98-826)

Submitted: January 31, 2006 Decided: February 28, 2006

Before WILLIAMS, MOTZ, and KING, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Langdon D. Long, Assistant Federal Public Defender, Columbia, South

Carolina, for Appellant. Jonathan S. Gasser, United States

Attorney, Marshall Prince, Assistant United States Attorney,

Columbia, South Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

See Local Rule 36(c).
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PER CURIAM:

Steven Lavour Twitty appeals following a remand to the

district court for resentencing. After considering the issues

raised on appeal, and the impact of the Supreme Court’s decision in

United States v. Booker, 543 U.S. 220, 125 S. Ct. 738 (2005),

decided while this case was pending on this appeal, we affirm the

sentence imposed by the district court on remand. 

Twitty pled guilty to one count of possession with intent

to distribute and distribution of an unspecified quantity of

cocaine and cocaine base. He received a sentence of 500 months of

imprisonment to be followed by five years supervised release.

After this court affirmed Twitty’s conviction and sentence, the

Supreme Court granted certiorari and remanded the case for

reconsideration in light of Apprendi v. New Jersey, 530 U.S. 466

(2000). On remand, we concluded that Twitty’s sentence “violate[d]

Apprendi because the indictment charged an unspecified quantity of

drugs and, under 21 U.S.C. § 841(b)(1)(C), he was subject to a

maximum sentence of twenty years,” citing United States v. Promise,

255 F.3d 150, 156 (4th Cir. 2001). United States v. Twitty, 74 F.

App’x 288 (4th Cir. 2003). Therefore, we vacated Twitty’s sentence

and remanded “for imposition of a sentence that does not exceed the

twenty-year maximum of § 841(b)(1)(C).” Id. 

On remand, the district court ordered a revised

presentence report and held a new sentencing hearing. Twitty
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sought to reopen issues raised at the first sentencing that had not

been challenged in the first appeal. The district court, after

hearing argument from counsel for both sides and from Twitty,

concluded that such issues could not be revived on remand for

resentencing. The court sentenced Twitty to 240 months of

imprisonment to be followed by three years supervised release, with

a special assessment of $100. 

Twitty appealed the sentence. His attorney filed a brief

in accordance with Anders v. California, 386 U.S. 738 (1967),

questioning the propriety of the district court’s refusal to

reconsider Twitty’s objections from his first sentencing, even

though they were not raised in the first appeal or discussed in the

remand from this court. Twitty filed a pro se supplemental brief,

also claiming that legal and factual issues resolved in the first

sentencing but not challenged on appeal should have been

reconsidered.

The mandate rule “forecloses relitigation of issues

expressly or impliedly decided by the appellate court,” as well as

“issues decided by the district court but foregone on appeal.”

United States v. Bell, 5 F.3d 64, 66 (4th Cir. 1993). “[W]here an

issue was ripe for review at the time of an initial appeal but was

nonetheless foregone, the mandate rule generally prohibits the

district court from reopening the issue on remand unless the

mandate can reasonably be understood as permitting it to do so.”
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United States v. Ben Zvi, 242 F.3d 89, 95 (2d Cir. 2001). Here,

Twitty cannot obtain reconsideration of issues he failed to raise

in his first appeal. Therefore, the district court was correct in

strictly limiting its decision on remand to resentencing on the

Apprendi issue.

Twitty also argues that the court should appoint new

appellate counsel to argue that current counsel has rendered

constitutionally ineffective assistance. Claims of ineffective

assistance of counsel generally should be asserted on collateral

review rather than on direct appeal, unless proof of the claimed

ineffective assistance is apparent on the face of the record.

United States v. King, 119 F.3d 290, 295 (4th Cir. 1997). As this

record does not on its face support Twitty’s claim that counsel was

ineffective, we decline to address it in this appeal.

While this case was pending on appeal, the Supreme Court

decided United States v. Booker, 543 U.S. 220, 125 S. Ct. 738

(2005). 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.

543 U.S. at ___, 125 S. Ct. at 746, 750 (Stevens, J., opinion of

the Court). The Court remedied the constitutional violation by

severing two statutory provisions, 18 U.S.C.A. § 3553(b)(1) (West

Supp. 2005) (requiring sentencing courts to impose a sentence
*

 United States v. Hughes, 401 F.3d 540 (4th Cir. 2005).

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within the applicable guideline range), and 18 U.S.C.A. § 3742(e)

(West 2000 & Supp. 2005) (setting forth appellate standards of

review for guideline issues), thereby making the guidelines

advisory. Booker, 543 U.S. at ___, 125 S. Ct. at 756-67 (Breyer,

J., opinion of the Court). The Supreme Court also reaffirmed its

prior holding in Apprendi that “[a]ny 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.” Booker, 543 U.S. at ___, 125 S.

Ct. at 756 (Stevens, J., opinion of the Court).

The parties have filed supplemental briefs addressing the

impact of Booker on this case. In his supplemental brief, counsel

for Twitty contends generally that the sentence imposed in this

case “violates Hughes,”* because it was based on facts found by the

district court. Counsel asserts that Twitty did not admit to the

drug weight used by the court to calculate Twitty’s offense level

or to possession of a firearm used by the court to enhance that

level. He also asserts that Twitty is entitled to have the

district court apply the sentencing factors of 18 U.S.C. § 3553(a),

which might result in a sentence less severe than the 240 month

sentence imposed on remand. Twitty asserts pro se in this court
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that the district court improperly made findings of fact to enhance

his sentence. 

We need not address Twitty’s first claim -- that the

district court erred by making findings regarding drug quantity and

firearm possession -- because it properly found him to be a career

offender pursuant to USSG § 4B1.1. Enhancements based on the fact

of prior convictions are excepted from the general holdings in

Apprendi, see 530 U.S. at 490, and Booker, 543 U.S. at __, 125 S.

Ct. at 756. Therefore, as long as the sentencing court does not

look beyond the charging document or certain other limited

documents, see Shepard v. United States, 544 U.S. 13, __, 125 S.

Ct. 1254, 1263 (2005), to identify whether the prior offenses

qualify under the definition of career offender, there is no Sixth

Amendment violation. See United States v. Washington, 404 F.3d

834, 841 (4th Cir. 2005). 

In this case, the career offender finding was based on

the fact that (1) Twitty was over eighteen at the time of the

offense of conviction, as he was born in 1969 and the offense

occurred in 1998; (2) the current offense was a controlled

substance felony, a violation of 21 U.S.C. § 841(b)(1)(C); and (3)

Twitty had a prior felony conviction for a controlled substances

offense, a 1990 New Jersey conviction for distributing a controlled

dangerous substance, and a prior felony conviction for a crime of

violence, a 1991 New Jersey conviction for aggravated assault. The
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district court could discern from the charging documents that

distributing a controlled dangerous substance was a controlled

substance offense, and aggravated assault is defined in the

guidelines as a crime of violence. USSG § 4B1.2, comment. (n.1).

“[T]he Sixth Amendment . . . does not demand that the mere fact of

a prior conviction used as a basis for a sentencing enhancement be

pleaded in an indictment and submitted to a jury for proof beyond

a reasonable doubt.” United States v. Cheek, 415 F.3d 349, 354

(4th Cir.), cert. denied, 126 S. Ct. 640 (2005).

The district court’s determination of drug quantity and

use of a firearm did not violate the Sixth Amendment because those

factors did not affect Twitty’s sentence at all. For this

§ 841(b)(1)(C) conviction, which has a statutory maximum sentence

of twenty years, Twitty’s career offender offense level is thirtytwo, USSG § 4B1.1(C), and his criminal history category is VI.

USSG § 4B1.1. These two factors result in a sentencing range of

210-262 months. (USSG Ch. 5, Pt. A (Sentencing Table)). Thus,

based solely on the career offender enhancement, Twitty’s 240-month

sentence did not “exceed the maximum authorized by the facts” that

were properly established and not found by the district court,

United States v. Evans, 416 F.3d 298, 300 n.4 (4th Cir. 2005), and

therefore did not violate his Sixth Amendment rights. United

States v. Collins, 412 F.3d 515, 523-24 (4th Cir. 2005) (“[N]o

Booker Sixth Amendment violation occurred here because Collins’s
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sentence, with the addition of the career offender enhancement,

still would have been the same even if the judge had not made the

finding as to the drug weight.”).

Counsel also claims that Twitty should be resentenced to

allow the district court to consider the sentencing factors of 18

U.S.C.A. § 3553(a) (West 2000 & Supp. 2005). We construe this

claim as a challenge to Twitty’s sentencing under the mandatory

guidelines regime. While the mandatory application of the

guidelines constitutes plain error, United States v. White, 405

F.3d 208, 217 (4th Cir.), cert. denied, 126 S. Ct. 668 (2005), a

defendant who seeks resentencing on this ground must show actual

prejudice, i.e., a “nonspeculative basis for concluding that the

treatment of the guidelines as mandatory ‘affect[ed] the district

court’s selection of the sentence imposed.’” Id. at 223 (quoting

Williams v. United States, 503 U.S. 193, 203 (1992)). Twitty does

not attempt to meet this test and the record does not show that the

district court desired to sentence him below the statutory maximum.

In fact, at resentencing, the district court, directed by this

court to impose “a sentence that does not exceed the twenty-year

maximum of § 841(b)(1)(C),” imposed the maximum possible sentence

of 240 months. As Twitty cannot show prejudice on this issue, he

has failed to establish plain error.

We therefore affirm Twitty’s sentence. Within the

constraints of the mandate rule, we have, as required by Anders,
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reviewed the record and have found no meritorious issues for

appeal. 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 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