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    United States v. Gardener, 4th Cir. (2006)

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    The document is an unpublished opinion from the United States Court of Appeals for the Fourth Circuit that affirms Daniel Gardener's 57-month prison sentence for illegal reentry after deportation. The Court rejects Gardener's arguments that the indictment did not establish his prior conviction and that the conviction was not proven beyond a reasonable doubt, citing prior Supreme Court decisions that prior convictions need not be charged in an indictment or proven to a jury when imposing sentencing enhancements.

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    United States v. Gardener, 4th Cir. (2006)

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    The document is an unpublished opinion from the United States Court of Appeals for the Fourth Circuit that affirms Daniel Gardener's 57-month prison sentence for illegal reentry after deportation. The Court rejects Gardener's arguments that the indictment did not establish his prior conviction and that the conviction was not proven beyond a reasonable doubt, citing prior Supreme Court decisions that prior convictions need not be charged in an indictment or proven to a jury when imposing sentencing enhancements.

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    Filed: 2006-02-13 Precedential Status: Non-Precedential Docket: 04-4716

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    The document is an unpublished opinion from the United States Court of Appeals for the Fourth Circuit that affirms Daniel Gardener's 57-month prison sentence for illegal reentry after deportation. The Court rejects Gardener's arguments that the indictment did not establish his prior conviction and that the conviction was not proven beyond a reasonable doubt, citing prior Supreme Court decisions that prior convictions need not be charged in an indictment or proven to a jury when imposing sentencing enhancements.

    Copyright:

    Public Domain
    Download as PDF or read online from Scribd
    Download as pdf
    12 views3 pages

    United States v. Gardener, 4th Cir. (2006)

    Uploaded by

    Scribd Government Docs
    The document is an unpublished opinion from the United States Court of Appeals for the Fourth Circuit that affirms Daniel Gardener's 57-month prison sentence for illegal reentry after deportation. The Court rejects Gardener's arguments that the indictment did not establish his prior conviction and that the conviction was not proven beyond a reasonable doubt, citing prior Supreme Court decisions that prior convictions need not be charged in an indictment or proven to a jury when imposing sentencing enhancements.

    Copyright:

    Public Domain
    Download as PDF or read online from Scribd
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    of 3

    UNPUBLISHED

    UNITED STATES COURT OF APPEALS


    FOR THE FOURTH CIRCUIT

    No. 04-4716

    UNITED STATES OF AMERICA,


    Plaintiff - Appellee,
    versus
    DANIEL C. GARDENER,
    Defendant - Appellant.

    Appeal from the United States District Court for the Western
    District of North Carolina, at Charlotte.
    Lacy H. Thornburg,
    District Judge. (CR-03-191)

    Submitted:

    January 25, 2006

    Decided:

    February 13, 2006

    Before WILKINSON, GREGORY, and DUNCAN, Circuit Judges.

    Affirmed by unpublished per curiam opinion.

    Mark P. Foster, Jr., NIXON, PARK, GRONQUIST & FOSTER, P.L.L.C.,


    Charlotte, North Carolina, for Appellant. Gretchen C. F. Shappert,
    United States Attorney, Holly A. Pierson, Assistant United States
    Attorney, Charlotte, North Carolina, for Appellee.

    Unpublished opinions are not binding precedent in this circuit.


    See Local Rule 36(c).

    PER CURIAM:
    Daniel C. Gardener appeals his fifty-seven month prison
    sentence resulting from his conviction for illegal reentry after
    deportation in violation of 8 U.S.C. 1326(a), (b)(2) (2000).*
    Finding no reversible error, we affirm.
    Gardener contends the indictment did not establish that
    he had a prior conviction under 1326(b)(2).

    The indictment

    established the elements of 1326(a), but only stated that he


    violated 1326(b)(2) and did not describe that he had a drug
    trafficking conviction that was an aggravated felony. However, the
    Supreme Court has ruled that 1326(b)(2) is a penalty provision,
    not an element of the offense, and an underlying aggravated felony
    conviction need not be charged in the indictment.

    Almendarez-

    Torres v. United States, 523 U.S. 224, 226-27 (1998); see also
    United States v. Cheek, 415 F.3d 349 (4th Cir. 2005) (AlmendarezTorres was not overruled by Apprendi v. New Jersey, 530 U.S. 466
    (2000), or United States v. Booker, 543 U.S. 220 (2005)).

    Thus, we

    conclude the indictment sufficiently charged the illegal reentry


    prior conviction upon which Gardeners sentence was based.
    Relying on Booker, Gardener also claims that the prior
    conviction

    was

    not

    proven

    beyond

    sentencing enhancement was improper.

    reasonable

    doubt

    and

    his

    In Almendarez-Torres, the

    Supreme Court held that the government need not allege in its

    Gardener does not appeal his conviction.


    - 2 -

    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.
    Torres, 523 U.S. at 233-36, 243-44.

    Almendarez-

    As a result, the district

    court did not err when it used Gardeners prior convictions to


    calculate his sentence.
    Accordingly, we affirm the district courts judgment. 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

    - 3 -

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