                             UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                             No. 04-4973



UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

          versus


YOUNG DOWELL, JR.,

                                              Defendant - Appellant.


Appeal from the United States District Court for the Southern
District of West Virginia, at Bluefield. David A. Faber, Chief
District Judge. (CR-04-66)


Submitted:   July 25, 2005                 Decided:   August 16, 2005


Before WILKINSON, MICHAEL, and GREGORY, Circuit Judges.


Affirmed in part, vacated in part, and remanded by unpublished per
curiam opinion.


Mary Lou Newberger, Federal Public Defender, Jonathan D. Byrne,
Appellate Counsel, Michael L. Desautels, Assistant Federal Public
Defender, Charleston, West Virginia, for Appellant. Kasey Warner,
United States Attorney, Miller A. Bushong, III, Assistant United
States Attorney, Beckley, West Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

             Young     Dowell,    Jr.   appeals     his    210    month    sentence

resulting from his conviction for distribution of cocaine base in

violation of 21 U.S.C. § 841(a)(1) (2000).                   We affirm Dowell’s

conviction, but vacate and remand for resentencing.

             Dowell pled guilty and does not challenge his conviction.

Dowell claims that the district court violated his Sixth Amendment

rights by enhancing his sentence by virtue of a designation of

career offender under U.S. Sentencing Guidelines Manual § 4B1.1

(2004), on facts not alleged in the indictment, not admitted by

Dowell, and not found by a jury beyond a reasonable doubt in

violation of United States v. Booker, 125 S. Ct. 738 (2005).

             In order for Dowell to be designated a career offender,

the Government had to establish (1) that Dowell was at least 18 at

the time of the instant offense, (2) that the instant offense is a

felony that is either a “crime of violence” or a “controlled

substance offense,” and (3) that Dowell had at least two prior

felony     convictions     for    either    a    “crime    of    violence”      or   a

“controlled substance offense.”            USSG § 4B1.1(a); United States v.

Harp, 406 F.3d 242, 245 (4th Cir. 2005).

             Dowell does not contest that he was fifty-one years old

at   the    time     of   the    instant   offense,       satisfying      the   first

requirement for career offender status under USSG § 4B1.1(a).                        A

controlled substance offense is:                “an offense under federal or


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state law, punishable by imprisonment for a term exceeding one

year, that prohibits the . . . distribution, or dispensing of a

controlled substance . . . or the possession of a controlled

substance     .   .   .   with   intent   to   manufacture,     import,   export,

distribute, or dispense.”           USSG § 4B1.2(b).           Here, Dowell pled

guilty to distribution of cocaine base in violation of 21 U.S.C.

§ 841(a)(1) (2000), a felony that carries a minimum sentence of ten

years in prison.          As the indictment states, cocaine base is a

controlled substance within the meaning of 21 U.S.C. § 812 (2000).

Dowell pled guilty to a controlled substance offense punishable by

imprisonment exceeding one year, satisfying the second requirement

of USSG § 4B1.1(a).

            Dowell had one prior felony controlled substance offense.

In 1998, Dowell pled guilty to delivery of cocaine base and was

sentenced to one to fifteen years imprisonment.                  Dowell also had

one prior felony crime of violence.              Under USSG § 4B1.2(a)(1), a

“crime   of       violence”      includes      any   offense     “punishable   by

imprisonment exceeding one year” that “has as an element the use

. . . of physical force against the person of another.”                        The

commentary to USSG § 4B1.2(a)(1) states that a “‘Crime of violence’

includes murder.”         See United States v. Pierce, 278 F.3d 282, 285-

86 (4th Cir. 2002).        In 1980, Dowell was convicted of second degree

murder and sentenced to five to eighteen years’ imprisonment.

Dowell does not dispute any facts related to his prior convictions.


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Because Dowell had two prior felony convictions, one for a crime of

violence and one for a controlled substance offense, he satisfied

the third requirement of USSG § 4B1.1(a).

          Dowell argues that the district court’s use of his prior

convictions constituted impermissible judicial fact-finding, but

Booker specifically excepted prior convictions from its requirement

that facts be admitted or proven to a jury beyond a reasonable

doubt.   Booker, 125 S. Ct. at 756.      Dowell’s prior convictions

qualified as a crime of violence and a controlled substance offense

as a matter of law; this conclusion required no further judicial

fact-finding.   See United States v. Ward, 171 F.3d 188, 192 (4th

Cir. 1999) (court’s inquiry into career offender status generally

limited to “the fact of conviction and the statutory elements of

the prior offense”).   The district court did not err in its ruling

that Dowell qualified for the career offender sentence enhancement.

          Dowell claims that even if he qualified as a career

offender, the district court violated his Sixth Amendment rights

because his prior convictions were not admitted by him or found by

a jury beyond a reasonable doubt.      In United States v. Harp, 406

F.3d 242 (4th Cir. 2005), this court, applying the plain error

standard, found that even if the district court committed plain

error when it determined that defendant was a career offender

without the elements of that designation having been charged in an

indictment, this court would not exercise its discretion to correct


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that error.     Harp, 406 F.3d at 247.    In Almendarez-Torres v. United

States, 523 U.S. 224 (1998), the Supreme Court held that “the

government need not allege in its indictment and need not prove

beyond reasonable doubt that a defendant had prior convictions for

a district court to use those convictions for purposes of enhancing

a sentence.”     Although the opinion in Apprendi v. New Jersey, 530

U.S. 466 (2000), expressed some uncertainty regarding the future

vitality   of   Almendarez-Torres,   this    court   has   concluded   that

Almendarez-Torres was not overruled by Apprendi.               See United

States v. Cheek,        F.3d     , 2005 WL 1669398 (4th Cir. July 19,

2005); United States v. Sterling, 283 F.3d 216, 220 (4th Cir.

2002).

           Dowell finally maintains that even if the district court

did not err in designating him a career offender, it erred in

failing to treat the guidelines as advisory.          As Dowell properly

raised this issue in the district court by objecting to his

sentence based on Blakely v. Washington, 124 S. Ct. 2531 (2004), we

review for harmless error.       The Government bears the burden in

harmless error review of showing beyond a reasonable doubt that the

error did not affect the defendant’s substantial rights.           United

States v. Mackins, 315 F.3d 399, 405 (4th Cir. 2003).                   The

Government did not meet this burden because the district court gave

no indication what the sentence would have been had the district

court appreciated that it was not bound by the guidelines.              We


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would have to speculate that the district court’s error in thinking

itself bound by the guidelines did not affect the sentence.                      In

light of Booker, we vacate Dowell’s sentence and remand the case

for resentencing.*

            Although      the    sentencing     guidelines     are     no   longer

mandatory, Booker makes clear that a sentencing court must still

“consult    [the]      Guidelines    and   take   them   into    account      when

sentencing.”      125 S. Ct. at 767.          On remand, the district court

should first determine the appropriate sentencing range under the

Guidelines,      making   all    factual   findings   appropriate       for   that

determination. See United States v. Hughes, 401 F.3d 540, 546 (4th

Cir. 2005) (applying Booker on plain error review).                    The court

should consider this sentencing range along with the other factors

described   in    18    U.S.C.   §   3553(a)   (2000),   and    then    impose   a

sentence.     Id.      If that sentence falls outside the Guidelines

range, the court should explain its reasons for the departure as

required by 18 U.S.C. § 3553(c)(2) (2000).            Id.    The sentence must

be “within the statutorily prescribed range and . . . reasonable.”

Id. at 546-47.




     *
      Just as we noted in United States v. Hughes, 401 F.3d 540,
545 n.4 (4th Cir. 2005), “[w]e of course offer no criticism of the
district judge, who followed the law and procedure in effect at the
time” of Dowell’s sentencing.

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          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 IN PART,
                                      VACATED IN PART, AND REMANDED




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