UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 04-4218

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

RONALD SHANE NEWSOME,

Defendant - Appellant.

Appeal from the United States District Court for the Middle

District of North Carolina, at Durham. James A. Beaty, Jr.,

District Judge. (CR-03-400)

Submitted: June 6, 2005 Decided: March 23, 2006

Before KING, GREGORY, and SHEDD, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Louis C. Allen, III, Federal Public Defender, John A. Dusenbury,

Jr., Assistant Federal Public Defender, Greensboro, North Carolina,

for Appellant. Anna Mills Wagoner, United States Attorney, Robert

A. J. Lang, Assistant 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Unpublished opinions are not binding precedent in this circuit.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:

Ronald Shane Newsome pled guilty pursuant to a written

plea agreement and was convicted of one count of being a felon in

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

924(e)(1) (2000). The guideline range calculated by the probation

officer pursuant to the then-mandatory United States Sentencing

Guidelines was 180-210 months’ imprisonment. The presentence

report (“PSR”) reflects that Newsome’s initial base offense level

was twenty-four because he had two prior felony convictions for

"crimes of violence" under the guidelines. The PSR further

reflects that at the time of Newsome’s arrest, a Glock magazine was

found on Newsome’s person, a Glock 9 mm semi-automatic handgun was

found in the glove box directly in front of Newsome, a Smith and

Wesson .40 caliber magazine and two holsters were recovered from

the passenger area of the vehicle Newsome had been in, and at least

one of the firearms found in Newsome’s possession at the time of

his arrest had been reported stolen. Newsome’s base offense level

was thus increased by two levels on the basis that the offense

involved three or more firearms, pursuant to U.S. Sentencing

Guidelines Manual (“USSG”) § 2K2.1(b)(1)(A) (2003), and by an

additional two levels, pursuant to USSG § 2K2.1(b)(4), because the

firearm was stolen. The PSR also reflects an enhancement of

Newsome’s base offense level from twenty-eight to thirty-three,

pursuant to USSG § 4B1.4, comment.(n.1), for being an armed career
1

The district court sentenced Newsome under the mandatory

guidelines scheme in place prior to the Supreme Court’s decision in

United States v. Booker, 543 U.S. 220 (2005), and prior to this

court’s decision in United States v. Hughes, 401 F.3d 540 (4th Cir.

2005).

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criminal. Newsome received a three-level reduction for acceptance

of responsibility, pursuant to USSG § 3E1.1(a), bringing his

assigned total offense level to thirty. The probation officer

placed Newsome at a criminal history category of VI, pursuant to

USSG § 4B1.4(c)(1). The statutory minimum sentence for a

conviction of possession of a firearm by a convicted felon pursuant

to 18 U.S.C. § 924(e) is a term of imprisonment not less than

fifteen years. Ultimately, the district court sentenced Newsome to

192 months in prison, a five year term of supervised release, and

ordered payment of a $100 special assessment.1

 

Newsome’s counsel has filed a brief pursuant to Anders v.

California, 386 U.S. 738 (1967), asserting error by the district

court in applying the armed career criminal enhancement to Newsome

in determining his sentence, but concluding that there are no

meritorious grounds for appeal. Newsome filed a pro se

supplemental brief, raising issues relating to the Court’s holdings

in Apprendi v. New Jersey, 530 U.S. 466 (2000), and Blakely v.

Washington, 542 U.S. 206 (2004), and specifically challenging the

§ 2K2.1(b)(1)(A) two-level enhancement (for an offense involving

three or more firearms). Subsequent to the Supreme Court’s ruling

in United States v. Booker, 543 U.S. 220 (2005), this court
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accorded Newsome the opportunity to submit supplemental briefing

raising any claims based upon Booker that he wished this court to

consider. He filed a supplemental brief, through counsel,

challenging the mandatory application of the guidelines to his

sentence. In accordance with our discussion below, we affirm

Newsome’s conviction and sentence.

In Booker, the Supreme Court applied the decision in

Blakely to the federal sentencing guidelines and concluded that the

Sixth Amendment is violated when a district court imposes a

sentence under the sentencing guidelines that is greater than a

sentence based solely upon facts found by the jury. Booker, 543

U.S. at 226-27, 245. The Court remedied the constitutional

violation by severing and excising the statutory provisions that

mandate sentencing and appellate review under the guidelines, thus

making the guidelines advisory. Id. at 245.

After Booker, courts must calculate the appropriate

guideline range, consider the range in conjunction with other

relevant factors under the guidelines and 18 U.S.C.A. § 3553(a)

(West 2000 & Supp. 2005), and impose a sentence. If a court

imposes a sentence outside the guideline range, the district court

must state its reasons for doing so. Hughes, 401 F.3d at 546.

This remedial scheme applies to any sentence imposed under the

mandatory sentencing guidelines, regardless of whether or not the

sentence violates the Sixth Amendment. Id. at 547. As stated in
2Just as we noted in Hughes, 401 F.3d at 545 n.4, “w[e] of

course offer no criticism of the district judge, who followed the

law and procedure in effect at the time” of Newsome’s sentencing.

See generally Johnson v. United States, 520 U.S. 461, 468 (1997)

(stating that an error is “plain” if “the law at the time of trial

was settled and clearly contrary to the law at the time of

appeal”).

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Hughes, this court will affirm a post-Booker sentence if it is both

reasonable and within the statutorily prescribed range. Id. at

546-47. Further, this court has stated that “while we believe that

the appropriate circumstances for imposing a sentence outside the

guideline range will depend on the facts of individual cases, we

have no reason to doubt that most sentences will continue to fall

within the applicable guideline range.” United States v. White,

405 F.3d 208, 219 (4th Cir.), cert. denied, 126 S. Ct. 668 (2005);

see United States v. Green, 436 F.3d 449, 457 (4th Cir. 2006) (“[A]

sentence imposed within the properly calculated Guidelines range

. . . is presumptively reasonable.”). 

In this case, as in Hughes, the district court sentenced

Newsome by applying the guidelines as a mandatory determinant in

sentencing and based upon judicially determined facts found by a

preponderance of the evidence.2 We nonetheless find his sentence

to be constitutionally sound.

First, we find no error in the district court’s

application of the armed career criminal enhancement to Newsome;

thus the five-level enhancement to Newsome’s base offense level was

proper. See United States v. Thompson, 421 F.3d 278, 282, 283-86
3

Excluding the challenged enhancements, and before adjusting

for acceptance of responsibility, see United States v. Evans, 418

F.3d 298, 301 n.4 (4th Cir. 2005)(in determining whether Sixth

Amendment error occurred, the sentence imposed must be compared to

the permissible guideline range before adjusting for acceptance of

responsibility), Newsome’s adjusted offense level would be 31,

which yields an attendant guideline range of 188 to 235 months.

The district court’s sentence of 192 months’ imprisonment was thus

within the guideline range even as adjusted for Newsome’s appellate

challenges.

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(4th Cir. 2005), cert. denied, __ U.S. __, 2006 WL 521274 (U.S.

Mar. 6, 2006) (No. 05-7266) (finding that facts “of” prior

conviction, including those “normally found in conclusive judicial

records,” as compared to facts “about” prior conviction, properly

may be determined by the court by preponderance of the evidence).

Plus, Newsome does not specifically challenge the two-level

enhancement pursuant to USSG § 2K2.1(b)(4). Moreover, both parties

agree that because of the armed career criminal enhancement under

USSG § 4B1.4(b)(3)(B), Newsome’s proper guideline range was 180-210

months. As Newsome’s sentence of 192 months does not exceed the

maximum under this guideline range, we find there was no Sixth

Amendment error.3 See United States v. Evans, 416 F.3d 298, 300-01

(4th Cir. 2005). Finally, because he can show no non-speculative

basis for concluding that the sentencing court might use its

discretion to impose a lesser sentence under an advisory

application of the guidelines, Newsome’s challenge to the mandatory
4

We also find Newsome’s challenge to his sentence under

Apprendi to be without merit. The maximum statutory penalty

applicable to Newsome’s conviction is life imprisonment, 18 U.S.C.

§ 924(e)(1), and his sentence of 192 months’ imprisonment is below

that statutory maximum penalty. Hence, Apprendi offers him no

relief.

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application of the guidelines is foreclosed by United States v.

White, 405 F.3d 208 (4th Cir. 2005).4 

In accordance with Anders, we have thoroughly examined

the entire record for potentially meritorious issues, and have

found none. Accordingly, we affirm Newsome’s conviction and

sentence. 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 that 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