UNITED STATES of America, Plaintiff - Appellee, v. Donnie Wayne NIPPER, Defendant - Appellant.
Decided: May 26, 2020
Before WILKINSON, NIEMEYER, and RICHARDSON, Circuit Judges.
Eugene E. Lester, III, SHARPLESS MCCLEARN LESTER DUFFY, PA, Greensboro, North Carolina, for Appellant. Brian A. Benczkowski, Assistant Attorney General, Matthew M. Miner, Deputy Assistant Attorney General, Thomas E. Booth, Criminal Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.; Matthew G.T. Martin, United States Attorney, Angela H. Miller, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Greensboro, North Carolina, for Appellee.
Donnie Wayne Nipper appeals his sentence of 180 months in prison imposed in the district court’s amended judgment after resentencing. He pled guilty to transporting stolen vehicles and possession of a firearm by a felon, and the district court originally sentenced him as an armed career criminal to concurrent prison terms of 120 months and 195 months. In 2016, he filed a 28 U.S.C. § 2255 motion contending he was no longer an armed career criminal based on Johnson v. United States, ––– U.S. ––––, 135 S. Ct. 2551, 192 L.Ed.2d 569 (2015). In denying his motion, the court relied on a conviction that was not previously identified as a predicate conviction. On appeal, we vacated the decision and remanded for reconsideration of the § 2255 motion in light of United States v. Hodge, 902 F.3d 420 (4th Cir. 2018). On remand, the court granted his § 2255 motion, vacated his prior sentence, and ordered his resentencing. At resentencing, the court again sentenced him as an armed career criminal but imposed a lower sentence. On appeal, he contends that the court was not permitted to consider at his resentencing any conviction that was not originally designated as a predicate at his first sentencing, and the Guidelines range used to resentence him was erroneous. We affirm.
When the Government seeks an enhanced sentence pursuant to the Armed Career Criminal Act (ACCA), it bears the burden of establishing by a preponderance of the evidence that the defendant has three prior convictions for a violent felony or serious drug offense. United States v. Rumley, 952 F.3d 538, 547 (4th Cir. 2020). “And the sentencing court is charged with weighing the evidence to determine whether the fact of conviction has been established.” Id. In evaluating whether the district court properly applied the Sentencing Guidelines, we review the district court’s factual findings for clear error and its legal conclusions de novo. United States v. Pena, 952 F.3d 503, 507 (4th Cir. 2020).
Nipper contends he should be resentenced without the ACCA classification, and the Guidelines range used to resentence him was erroneous. He also contends the Government could not rely on any ACCA predicates at his resentencing that were not previously identified at his original sentencing. We disagree. See Rumley, 952 F.3d at 545-47. Because Nipper “had both notice and a meaningful opportunity to challenge the designated predicate convictions prior to the resentencing hearing,” the district court did not err in considering previously unidentified ACCA predicates. Id. at 545. We further conclude that the court did not err in finding that Nipper had at least three qualifying predicates.
Accordingly, we deny Nipper’s motion to expedite as moot and affirm the district court’s amended 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 by unpublished per curiam opinion.
Unpublished opinions are not binding precedent in this circuit.
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