UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 04-4291

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

MARTY HERNDON,

Defendant - Appellant.

Appeal from the United States District Court for the District of

South Carolina, at Rock Hill. Matthew J. Perry, Jr., Senior

District Judge. (CR-02-933)

Submitted: August 17, 2005 Decided: August 29, 2005

Before WILLIAMS, KING, and SHEDD, Circuit Judges.

Affirmed by unpublished per curiam opinion.

John A. O’Leary, O’LEARY ASSOCIATES, P.A., Columbia, South

Carolina, for Appellant. J. Strom Thurmond, Jr., United States

Attorney, Jane B. Taylor, 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Unpublished opinions are not binding precedent in this circuit.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:

Marty Herndon appeals his sentence imposed after a guilty

plea, pursuant to written a plea agreement, for possession with

intent to distribute 5 grams or more of cocaine base, in violation

of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B) (2000). Finding no

error, we affirm Herndon’s conviction and sentence.

Herndon maintains that the district court violated his

Sixth Amendment rights by imposing a sentence enhanced by a

designation of career offender status on facts not alleged in the

indictment, not admitted by him, and not found by a jury beyond a

reasonable doubt. Specifically, Herndon claims that the district

court’s finding that his prior convictions for failing to stop for

a blue light qualified as crimes of violence for determining his

career offender status, under U.S. Sentencing Guidelines Manual

§ 4B1.1 (2002), constituted impermissible judicial fact-finding

under Blakely v. Washington, 542 U.S. 296 (2004). Because this

objection was not raised in the district court, we review for plain

error. See Fed. R. Crim. P. 52(b); United States v. Olano, 507

U.S. 725, 731-32 (1993).

The Supreme Court held in United States v. Booker, 125 S.

Ct. 738, 746, 750 (2005), 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. In Almendarez-
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Torres v. United States, 523 U.S. 224, 233-35 (1998), the Supreme

Court held that the government need not allege in its indictment

and need not prove beyond reasonable doubt that a defendant had

prior convictions for a district court to use those convictions for

purposes of enhancing a sentence. 

This court has held in United States v. James, 337 F.3d

387, 391 (4th Cir. 2003), that failure to stop for a blue light is

a “violent felony” under the armed career statute, 18 U.S.C.

§ 924(e)(2)(B)(ii) (2000). Therefore, Herndon has “no legitimate

defense to the career offender designation.” United States v.

Harp, 406 F.3d 242, 247 (4th Cir. 2005).

Accordingly, we deny Herndon’s pro se “Motion Requesting

Permission to File Supplemental Brief in Lieu of Appointed

Counsel’s Ander’s [sic] Brief Filing” as moot 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