United States of America v. Donnie Wayne Nipper

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 19-4224

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

DONNIE WAYNE NIPPER,

Defendant - Appellant.

Appeal from the United States District Court for the Middle District of North Carolina, at
Greensboro. Thomas D. Schroeder, Chief District Judge. (1:04-cr-00434-TDS-1)

Submitted: May 8, 2020 Decided: May 26, 2020

Before WILKINSON, NIEMEYER, and RICHARDSON, Circuit Judges.

Affirmed by unpublished per curiam opinion.

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.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
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, 135 S. Ct. 2551 (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

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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