                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 05-4081



UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

          versus


JAMES MILLARD OXENDINE,

                                              Defendant - Appellant.



Appeal from the United States District        Court for the Middle
District of North Carolina, at Durham.         James A. Beaty, Jr.,
District Judge. (CR-04-258)


Submitted:   September 19, 2005           Decided:   October 12, 2005


Before NIEMEYER, SHEDD, and DUNCAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Thomas N. Cochran, Assistant Federal Public Defender, Greensboro,
North Carolina, for Appellant. Anna Mills Wagoner, United States
Attorney, Michael F. Joseph, Assistant United States Attorney,
Greensboro, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

            James Millard Oxendine was convicted of being a felon in

possession of a firearm, in violation of 18 U.S.C. § 922(g)(1)

(2000).    He was sentenced as an armed career criminal to 235 months

in prison.      Oxendine now appeals his conviction and sentence.      We

affirm.



                                      I

            After he was stopped for driving on a suspended license,

Oxendine opened the glove compartment of the car and pulled out a

handgun, which he placed on the dashboard.         Two sheriff’s deputies

testified that Oxendine informed them at the scene that the gun and

marijuana found in the car were his.           One deputy testified that

Oxendine again asserted ownership of the gun later in the day when

he   was   at   the   sheriff’s   department   annex.   Darnell   Bullard,

Oxendine’s passenger, testified that Oxendine informed officers at

the scene of the traffic stop that the gun belonged to Oxendine’s

mother, Debra Hardin.        Hardin testified that the gun was hers.

Oxendine testified that he told one of the officers at the scene

that whatever was in the car was his responsibility, referring only

to the marijuana; he denied claiming the gun as his.

            Following his conviction, a presentence report (psr) was

prepared.       The base offense level of 14, see U.S. Sentencing

Guidelines Manual § 2K2.1(a)(6)(A) (2003), was increased to 33


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because   Oxendine   was   an   armed   career   criminal.   See   USSG

§ 4B1.4(b)(3)(B). Oxendine’s criminal history category as an armed

career criminal was VI.    The guideline range for offense level 33,

criminal history category VI, is 235-293 months.

            Oxendine objected under Blakely v. Washington, 542 U.S.

296, 124 S. Ct. 2531 (2004), to his treatment as an armed career

criminal.   The district court overruled his objection, adopted the

psr, and imposed a 235-month sentence.



                                   II

            Oxendine claims that the district court erred when it

refused to instruct the jury on innocent possession when the

evidence would have allowed a jury to conclude that his possession

of the gun was both innocent and transitory.       We review a district

court’s decision whether to give a jury instruction for abuse of

discretion.   United States v. Kennedy, 372 U.S. 686, 698 (4th Cir.

2004). We decline to recognize innocent possession as a defense to

an offense under § 922(g)(l).           Even if such a defense were

recognized in this circuit, the facts of this case would not have

warranted the instruction.      See United States v. Mason, 233 F.3d

619, 624 (D.C. Cir. 2001).




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                                      III

           Oxendine contends that his sentence as an armed career

criminal violates the Sixth Amendment under United States v.

Booker, 125 S. Ct. 738 (2005), and Blakely.             He asserts that his

offense level should have been 14 instead of 33 because the jury

did not find that he had the requisite prior felony convictions for

armed career criminal status.        Because he raised this issue below,

our review is de novo.        See United States v. Mackins, 315 F.3d 399,

405 (4th Cir. 2003).

           In Shepard v. United States, 125 S. Ct. 1254 (2005), the

Supreme Court instructed that Sixth Amendment protections apply to

disputed facts about a prior conviction that are not evident from

“the conclusive significance of a prior judicial record.”             Id. at

1262-63.   Here, Oxendine did not contest any facts about his prior

convictions      identified    as   predicate    felonies   warranting    the

increase to base offense level 33.           Rather, his is a purely legal

argument. Therefore, the district court did not consider any facts

Oxendine did not admit, and the court’s determination of armed

career criminal status did not violate the Sixth Amendment.               See

United States v. Collins, 412 F.3d 515, 521-23 (4th Cir. 2005).



                                      IV

           Finally, Oxendine claims that the district court erred by

treating   the    sentencing     guidelines     as   mandatory   rather   than


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advisory, as Booker requires.       This claim, which Oxendine did not

raise below, is reviewed for plain error.          See United States v.

Olano,    507   U.S.   725,   732   (1993).      Because   there    is   no

nonspeculative basis suggesting that the district court would have

sentenced Oxendine to a different sentence had the guidelines been

advisory, we conclude that the court’s plain error did not affect

Oxendine’s substantial rights, and we decline to recognize the

error.    See United States v. White, 405 F.3d 208, 224-25 (4th Cir.

2005).*



                                      V

            We accordingly affirm.        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




     *
      The district court announced an alternate sentence, presuming
that the increase in base offense level from 14 to 33 based on
armed career status might be invalid after Blakely.       The court
determined that the guideline range for offense level 14, criminal
history category VI, was 37-46 months, and imposed an alternative
46-month sentence. In imposing this sentence, however, the court
treated the guidelines as mandatory rather than advisory. Thus,
the alternative sentence does not demonstrate that the district
court would have sentenced Oxendine to a different sentence under
an advisory guideline scheme.

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