                              UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                              No. 04-4202



UNITED STATES OF AMERICA,

                                                Plaintiff - Appellee,

          versus


DAVID PATRICK WORRELL,

                                               Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at New Bern.   Malcolm J. Howard,
District Judge. (CR-03-49)


Submitted:   August 1, 2005                 Decided:   August 17, 2005


Before WILLIAMS, TRAXLER, and GREGORY, Circuit Judges.


Affirmed in part; dismissed in part by unpublished per curiam
opinion.


Rudolph A. Ashton, III, MCCOTTER, ASHTON & SMITH, P.A., New Bern,
North Carolina, for Appellant. Frank D. Whitney, United States
Attorney, Anne M. Hayes, Christine Witcover Dean, Assistant United
States Attorneys, Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

               David Patrick Worrell pled guilty to possession with

intent    to    distribute   cocaine      and   possession   with   intent   to

distribute heroin, both in violation of 21 U.S.C. § 841(a)(1)

(2000).    He was sentenced to 151 months’ imprisonment.            On appeal,

he argues that: (1) the district court erred in denying his motion

to suppress without a hearing; (2) the district court erred in

denying his motion for a downward departure on the ground that his

criminal       history   category   and    career   offender   status   over-

represented the seriousness of his past criminal conduct; (3) the

district court erred in denying his motion for a downward departure

based on a “fast-track” plea agreement; and (4) the district

court’s determination that Worrell was a career offender violated

his Sixth Amendment right to a jury under Blakely v. Washington,

542 U.S. 296 (2004).         For the reasons that follow, we affirm in

part and dismiss in part.

               Worrell first argues on appeal that the district court

should have held a hearing on his pro se motion to suppress and

that the court erred in denying the motion.            Rule 11(a)(2) of the

Federal Rules of Criminal Procedure requires the consent of the

court and the government in order for a defendant to enter a

conditional plea of guilty and reserve his right to appeal an

adverse determination of a pre-trial motion.            If the requirements

of Rule 11(a)(2) are not met, the defendant is foreclosed from


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appealing non-jurisdictional defects, including the denial of a

motion to suppress.      Tollett v. Henderson, 411 U.S. 258, 267

(1973); United States v. Willis, 992 F.2d 489, 490 (4th Cir. 1993).

Because Worrell has not met the requirements of Rule 11(a)(2), we

find that Worrell is foreclosed from appealing the denial of his

motion to suppress.

          Worrell next argues that the district court erred in

denying his motion for a downward departure, pursuant to U.S.

Sentencing Guidelines Manual § 4A1.3 (2003), on the basis that his

career   offender   status   and   criminal   history   category   over-

represented the seriousness of his criminal history.       The district

court’s decision not to depart below the guideline range is not

reviewable on appeal unless it is based on a mistaken belief that

the court lacks authority to depart.       United States v. Carr, 271

F.3d 172, 176-77 (4th Cir. 2001).     Because it is clear in this case

that the district court understood its authority to depart and

simply chose not to, we dismiss this claim.

          Worrell also maintains that the district court erred in

its decision not to consider a “fast track” plea agreement which

could have resulted in a two-level reduction in his sentence.

Here, the district court denied the motion for a downward departure

on the basis of a “fast-track” plea, finding that it lacked the

authority to depart.   If a district court concludes that it lacks

authority to grant a downward departure as a matter of law, that


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ruling is reviewed de novo.           United States v. Hall, 977 F.2d 861,

863 (4th Cir. 1992).        We conclude that the district court properly

determined that it lacked the authority to depart and therefore

dismiss this portion of the appeal.

            Last, citing Blakely v. Washington, 542 U.S. 296 (2004),

Worrell maintains that the district court violated his Sixth

Amendment rights by imposing a sentence enhanced by his designation

as a career offender on facts not alleged in the indictment,

admitted by him, or found by a jury beyond a reasonable doubt.

Specifically,        Worrell       claims     that        the   district      court’s

determination that his prior convictions for possession with intent

to distribute CDS and possession with intent to distribute cocaine

qualified as “controlled substance offenses” under USSG § 4B1.2

constituted impermissible judicial fact-finding because it required

the court to find he had a “specific type of prior conviction.”

            Because Worrell did not raise his Sixth Amendment claim

below, we review the district court’s sentence for plain error.

United    States     v.   Olano,    507    U.S.    725,    731-32   (1993);    United

States v. Hughes, 401 F.3d 540, 547 (4th Cir. 2005).                       Under the

plain error standard, Worrell must show: (1) there was error;

(2) the error was plain; and (3) the error affected his substantial

rights.    Olano, 507 U.S. at 732-34.             Even when these conditions are

satisfied, this court may exercise its discretion to notice the

error    only   if    the   error    “seriously       affect[s]     the    fairness,


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integrity or public reputation of judicial proceedings.”          Id. at

736 (internal quotation marks omitted).

            We find that Worrell’s career offender designation does

not violate the Sixth Amendment. See Shepard v. United States, 125

S.   Ct.   1254,   1262-63   (2005)   (holding   that   Sixth   Amendment

protections apply only to disputed facts about a prior conviction);

see also United States v. Harp, 406 F.3d 242, 247 (4th Cir. 2005)

(declining to notice any error in a career offender sentence on

review for plain error because defendant “had no legitimate defense

to career offender designation”).

            In light of the above, we affirm Worrell’s conviction and

sentence and dismiss the appeal as to the court’s denial of his

motions for a downward departure.       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; DISMISSED IN PART




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