“Any fact (other than a prior conviction) which is necessary to support a sentence ... must be proved to a jury.”
How later courts described this case
- “Any fact (other than a prior conviction) which is necessary to support a sentence ... must be proved to a jury.”
Written by the judges who cited it.
The opinion
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4871
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
KENNETH LEE BROWN,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Spartanburg. Henry M. Herlong, Jr., District
Judge. (CR-04-27)
Submitted: September 30, 2005 Decided: November 2, 2005
Before NIEMEYER, TRAXLER, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
J. Robert Haley, Assistant Federal Public Defender, Charleston,
South Carolina, for Appellant. Jonathan S. Gasser, Acting United
States Attorney, E. Jean Howard, Assistant United States Attorney,
Greenville, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Kenneth Lee Brown appeals from the judgment of the
district court convicting him, after a jury trial, of two counts of
armed bank robbery and two counts of use of a firearm in a crime of
violence, and sentencing him to 746 months’ imprisonment. Finding
no reversible error, we affirm.
Brown first claims on appeal that the district court
denied him his Sixth Amendment right to self-representation and his
related right to counsel of his choosing. Our review of the record
discloses that Brown repeatedly complained he was not prepared for
trial and was not satisfied with his attorney. However, we find
nothing in the record demonstrating that Brown either sought to
represent himself or requested substitute counsel. Moreover, to
the extent his protestations could be construed as such requests,
they were not timely made. Accordingly, we conclude the district
court did not abuse its discretion in proceeding with Brown’s trial
in the face of his objection. See United States v. Singleton, 107
F.3d 1091 (4th Cir. 1997).
Brown also claims the district court erred in instructing
the jury pursuant to Allen v. United States, 164 U.S. 492 (1896).
For an Allen charge to be proper, it must not coerce the jury, and
it must be fair, neutral, and balanced. United States v. Cropp,
127 F.3d 354, 359-60 (4th Cir. 1997). We have reviewed the
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district court’s instruction and find no error. Accordingly, we
deny this claim.
Brown also asserts the district court’s imposition of
sentence violated his Sixth Amendment right to trial by jury based
on the application of the career offender enhancement under a
mandatory guidelines scheme. In United States v. Booker, 125 S.
Ct. 738 (2005), the United States Supreme Court reaffirmed the
distinction between facts that must be proven to a jury and prior
convictions, which need not. See Booker, 125 S. Ct. at 756 (“Any
fact (other than a prior conviction) which is necessary to support
a sentence . . . must be proved to a jury.”). The determination of
Brown’s status as a career offender does not offend the Sixth
Amendment. See United States v. Cheek, 415 F.3d 349, 350 (4th Cir.
2005) (holding that Sixth Amendment not violated when sentence
enhanced based on prior convictions that were not charged in
indictment or admitted by defendant). Moreover, absent an indicia
of prejudice, Brown cannot prevail on a claim that a per se
application of the mandatory guidelines violated his Sixth
Amendment rights. See United States v. White, 405 F.3d 208, 223
(4th Cir. 2005). Our review of the sentencing transcript discloses
no such prejudice. Accordingly, we deny this claim.
Finally, Brown seeks to file a pro se supplemental brief
and an addendum to that brief, in which he raises numerous counts
of ineffective assistance of counsel, as well as prosecutorial
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misconduct and constructive amendment of the indictment. Because
Brown is represented by counsel, and because his ineffective
assistance claims are more appropriately addressed through a motion
under 28 U.S.C. § 2255 (2000), we decline to address the
supplemental claims in this direct appeal. Accordingly, we deny
Brown’s motions to file a pro se supplemental brief and second
supplemental pro se brief.
We affirm the judgment of the district court. 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
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