                          UNPUBLISHED

UNITED STATES COURT OF APPEALS
                FOR THE FOURTH CIRCUIT


UNITED STATES OF AMERICA,              
                 Plaintiff-Appellee,
                 v.                               No. 02-4144
PETER HENSON,
                Defendant-Appellant.
                                       
           Appeal from the United States District Court
     for the Western District of North Carolina, at Asheville.
               Lacy H. Thornburg, District Judge.
                           (CR-99-68)

                      Submitted: August 20, 2002

                      Decided: September 4, 2002

   Before WILKINS, LUTTIG, and GREGORY, Circuit Judges.



Affirmed by unpublished per curiam opinion.


                             COUNSEL

Aaron E. Michel, Charlotte, North Carolina, for Appellant. Robert J.
Conrad, Jr., United States Attorney, Brian Lee Whisler, Assistant
United States Attorney, Charlotte, North Carolina, for Appellee.



Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2                     UNITED STATES v. HENSON
                              OPINION

PER CURIAM:

   Peter Henson appeals his sixty-month sentence entered after
remand for resentencing on his guilty plea to receiving or distributing
in excess of one hundred pictures depicting minors engaged in sexu-
ally explicit conduct, in violation of 18 U.S.C. § 2252 (2000). At his
resentencing, Henson’s guideline range was calculated at thirty-seven
to forty-six months. However, because Henson had a prior conviction,
he was sentenced to sixty months’ imprisonment, based on the man-
datory minimum under § 2252(b)(1). He now appeals the sentence,
arguing that application of the mandatory minimum violated Apprendi
v. New Jersey, 530 U.S. 466 (2000), because his prior conviction was
not charged in the indictment.*

   The Supreme Court held in Apprendi that, other than the fact of a
prior conviction, any fact that increases the penalty for a crime
beyond the prescribed statutory maximum must be charged in the
indictment, submitted to a jury, and proved beyond a reasonable
doubt. 530 U.S. at 490. We find that Apprendi is inapplicable to the
present case.

   First, Apprendi specifically excluded enhancements which are
based on prior convictions from its holding. Id. Because the manda-
tory minimum challenged in this case was based on Henson’s prior
conviction, Apprendi is not applicable. Second, Apprendi does not
apply to facts which increase the mandatory minimum so long as the
sentence is not extended beyond the statutory maximum. Harris v.
United States, ___ U.S. ___, 122 S. Ct. 2406, 2414 (2002). Section
2252(b)(1) provides for a maximum sentence of fifteen years for vio-
lation of § 2252(a), where the defendant does not have a prior convic-
tion. Since Henson was sentenced to five years, well below the
statutory maximum with no enhancement, there is no Apprendi error.
See id.; see also United States v. Angle, 254 F.3d 514, 518 (4th Cir.),
cert. denied, 122 S. Ct. 309 (2001).

   *Application of the mandatory minimum was not an issue at Henson’s
first sentencing since even the low end of his guideline range exceeded
the statutory minimum.
                      UNITED STATES v. HENSON                       3
   Thus, we affirm Henson’s sentence. We dispense with oral argu-
ment, because the facts and legal contentions are adequately presented
in the materials before the court and argument would not aid the deci-
sional process.

                                                         AFFIRMED
