                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 08-4304


UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

             v.

BRYAN KEITH UMBERGER, a/k/a Brian Keith Umberger,

                  Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Newport News.    Walter D. Kelley, Jr.,
District Judge. (4:07-cr-00012-WDK-TEM-1)


Submitted:    November 20, 2008            Decided:   November 25, 2008


Before MOTZ and GREGORY, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


James S. Ellenson, LAW OFFICE OF JAMES STEPHEN ELLENSON, Newport
News, Virginia, for Appellant.    Chuck Rosenberg, United States
Attorney, Jessica M. Norris, Special Assistant United States
Attorney, Newport News, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

           Bryan Umberger was convicted by a jury of one count of

possession of a firearm by a convicted felon and five counts of

drug possession.           He was sentenced to 236 months’ imprisonment.

On   appeal,     he       argues     that        he     was     entitled         to     a    jury

determination        on     the     issue      of       whether       his    prior          felony

convictions     were       violent    felonies          for    purposes      of       the   Armed

Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e) (2006).                                        He

argues that enhancement of his sentence under the ACCA violated

his Sixth Amendment right to a jury trial.

           Umberger’s argument is foreclosed by the precedent of

both the Supreme Court and this court.                            See James v. United

States,   127    S.       Ct.   1586,     1600        (2007)    (in     construing           prior

convictions as violent felonies for purposes of the ACCA, the

court engages in “statutory interpretation, not judicial fact

finding”);     Almendarez-Torres            v.      United     States,       523      U.S.    224

(1998) (the Constitution does not require that prior convictions

be   alleged    in    an    indictment         or     proven    to     a    jury      beyond     a

reasonable      doubt      in     order   to       be    the    basis       of    a    sentence

enhancement); United States v. Cheek, 415 F.3d 349 (4th Cir.

2005) (accord).           Accordingly, we affirm Umberger’s convictions

and sentence.        We dispense with oral argument because the facts




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and legal contentions are adequately presented in the materials

before   the   court   and   argument   would   not   aid   the   decisional

process.

                                                                    AFFIRMED




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