UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 07-4701

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

YPHUONG KPA,

Defendant - Appellant.

Appeal from the United States District Court for the Middle

District of North Carolina, at Durham. William L. Osteen, Senior

District Judge. (1:06-cr-00403-WLO)

Submitted: January 10, 2008 Decided: February 29, 2008

Before WILKINSON, TRAXLER, and KING, Circuit Judges.

Affirmed by unpublished per curiam opinion.

C. Scott Holmes, BROCK, PAYNE & MEECE, P.A., Durham, North

Carolina, for Appellant. Anna Mills Wagoner, United States

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

Greensboro, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Yphuong Kpa appeals the 205-month sentence he received

following his guilty plea to possession of a firearm by a convicted

felon, in violation of 18 U.S.C. § 922(g)(1) (2000). The district

court determined that Kpa had been previously convicted of three or

more serious drug offenses or violent felonies and therefore

qualified as an armed career criminal under 18 U.S.C. § 924(e)

(2000). On appeal, Kpa contends that the district court violated

the Double Jeopardy Clause by imposing an enhanced sentence

pursuant to the Armed Career Criminal Act. Finding no error, we

affirm.

While recognizing that recidivist statutes have been

upheld as posing no double jeopardy conflict and that prior

convictions are not required to be found by a jury, Kpa contends

that these principles have been “eroded” by recent Supreme Court

rulings. Accordingly, Kpa asks this court to reconsider whether

convictions that enhance punishment are elements of the crime that

must be included in an indictment and determined by a jury.

Furthermore, Kpa contends that if prior convictions were held to be

elements of the charged offense, it would require a reevaluation of

our double jeopardy jurisprudence with respect to recidivist

statutes.

However, as Kpa concedes, his claims are foreclosed by

Supreme Court and Fourth Circuit precedent. In United States v.
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Presley, 52 F.3d 64, 68 (4th Cir. 1995), this court held that the

Armed Career Criminal Act does not violate the Double Jeopardy

Clause. Furthermore, the fact of a prior conviction need not be

proven beyond a reasonable doubt. See Almendarez-Torres v. United

States, 523 U.S. 224, 233-36, 243-44 (1998); see also United

States v. Cheek, 415 F.3d 349, 351-54 (4th Cir.) (reaffirming

continuing validity of Almendarez-Torres after United States v.

Booker, 543 U.S. 220 (2005)), cert. denied, 546 U.S. 1010 (2005).

This court has ruled that the nature and occasion of prior offenses

are facts inherent in the convictions and that the Government is

not required to allege prior convictions in the indictment or

submit proof of them to a jury. See United States v. Thompson, 421

F.3d 278, 285-87 (4th Cir. 2005), cert. denied, 547 U.S. 1005

(2006); see also Shepard v. United States, 544 U.S. 13, 25 (2005).

Therefore, we find that Kpa’s claims are meritless.

Accordingly, we affirm Kpa’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