                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 04-4351



UNITED STATES OF AMERICA,

                                             Plaintiff - Appellee,

          versus


TYRONE GREGORY DUNLAP,

                                            Defendant - Appellant.



Appeal from the United States District Court for the District of
South Carolina, at Florence.   Terry L. Wooten, District Judge.
(CR-03-846)


Submitted:   October 28, 2005          Decided:     November 17, 2005


Before WILKINSON and MICHAEL, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed in part, vacated in part, and remanded by unpublished per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


William F. Nettles, IV, Assistant Federal Public Defender,
Florence, South Carolina, for Appellant.     Rose Mary Parham,
Assistant United States Attorney, Florence, South Carolina, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Pursuant to his guilty plea, Tyrone Gregory Dunlap was

convicted    of   possession   of   a   firearm     by   a   person   previously

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

924(a)(2) (2000).        The district court sentenced Dunlap under the

federal     sentencing    guidelines     to   108    months     incarceration.

Dunlap’s counsel filed a brief pursuant to Anders v. California,

386 U.S. 738 (1967), stating that there were no meritorious issues

for appeal, but challenging the validity of the plea and the

propriety of the sentence.          Dunlap filed a pro se supplemental

brief arguing that his conviction and sentence are invalid because

his sentence was enhanced by facts found by the district court

judge.    See United States v. Booker, 125 S. Ct. 738 (2005).               For

the reasons that follow, we affirm Dunlap’s conviction, but vacate

his sentence and remand for resentencing.

            We find that Dunlap’s guilty plea was knowingly and

voluntarily entered after a thorough hearing pursuant to Fed. R.

Crim. P. 11.       Dunlap was properly advised of his rights, the

offense charged, and the maximum sentence for the offense.                  The

court also determined that there was an independent factual basis

for the plea and that the plea was not coerced or influenced by any

promises.     See North Carolina v. Alford, 400 U.S. 25, 31 (1970);

United States v. DeFusco, 949 F.2d 114, 119-20 (4th Cir. 1991).

Dunlap contends that his plea was not knowingly entered because he


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was not advised that prior felony convictions for either a crime of

violence or a controlled substance offense were elements of the

offense to which he pled guilty.               Dunlap notes that these factors

were    not   charged      in   the    indictment,     nor       did   he   admit   them.

Therefore, he asserts that his plea is invalid because it was not

knowingly entered. However, Dunlap’s prior convictions for drug or

violent crimes are not elements of the § 922(g)(1) offense.                          These

relate to sentencing and are discussed below.

              Relying on Blakely v. Washington, 542 U.S. 296 (2004),

the predecessor to United States v. Booker, Dunlap contends that

the     district    court       made    factual      findings      about     his    prior

convictions,       which    resulted      in   his    base    offense       level   being

increased to level 24.           In Almendarez-Torres v. United States, 523

U.S. 224, 233-35 (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.     See United States v. Cheek, 415 F.3d 349, 351-54 (4th

Cir. 2005) (holding that armed career criminal designation based on

defendant’s prior convictions did not violate Sixth Amendment),

petition for cert. filed,               U.S.L.W.           (U.S. Oct. 3, 2005) (No.

05-6904); United States v. Guevara, 408 F.3d 252, 261 (5th Cir.

2005)    (“Career    offender         status   is    not    ‘a    sentencing       judge’s

determination of a fact other than a prior conviction.’ . . .


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Booker explicitly excepts from Sixth Amendment analysis the third

component of the crime of violence determination, the fact of two

prior convictions.”). Thus, we find no error by the district court

in determining Dunlap’s base offense level by reference to his

prior convictions.

            Dunlap next argues that his sentence is unconstitutional

because it was enhanced by four levels based on the district

court’s finding that he possessed the firearm in connection with

another felony offense.       See U.S. Sentencing Guidelines Manual

§ 2K2.1(b)(5) (2003).       In United States v. Booker, the Supreme

Court held that the mandatory guidelines scheme that provided for

sentence enhancements based on facts found by the court violated

the Sixth Amendment.      Booker, 125 S. Ct. at 746-48, 755-56.        The

Court   remedied    the   constitutional   violation   by   severing   and

excising the statutory provisions that mandate sentencing and

appellate review under the guidelines, thus making the guidelines

advisory.     Id. at 756-57.      Subsequently, in United States v.

Hughes, 401 F.3d 540, 546 (4th Cir. 2005), this court held that a

sentence that was imposed under the pre-Booker mandatory sentencing

scheme and was enhanced based on facts found by the court, not by

a jury or admitted by the defendant, constitutes plain error that

affects the defendant’s substantial rights and warrants reversal

under Booker.      Hughes, 401 F.3d at 546-56.




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            In this case, Dunlap contends that he did not admit that

he possessed the drugs that the court found he possessed, nor did

he admit that the firearm was possessed in connection with another

felony   offense.      Therefore,     he     argues   that   the    four-level

enhancement violated his Sixth Amendment rights.              Because Dunlap

neither contested the calculation of his base offense level nor

raised a Blakely-type challenge at sentencing, review is for plain

error.   United States v. Olano, 507 U.S. 725, 732 (1993); Hughes,

401 F.3d at 547.    Under the plain error standard, Dunlap 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 affects

the   fairness,     integrity   or     public    reputation    of    judicial

proceedings.”     Hughes, 401 F.3d at 555 (internal quotation marks

omitted).

            Because the court made factual findings that increased

Dunlap’s sentence, we find that there was plain error.              Also, this

error resulted in Dunlap being exposed to a longer prison term, and

therefore affects his substantial rights. Id. at 548. Because the

district court “impose[d] a sentence greater than the maximum

authorized by the facts found by the jury alone,” we find that the

district court committed plain error that warrants correction. Id.




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at 546.     Accordingly, we vacate Dunlap’s sentence and remand for

resentencing.1

             The final issue presented in this appeal is a challenge

to the district court’s determination that Dunlap had not accepted

responsibility.      This finding was made after Dunlap twice tested

positive for marijuana use while he was on bond pending sentencing.

We find no clear error in this ruling.        See USSG § 3E1.1, comment.

(n.1(b)); United States v. Kise, 369 F.3d 766, 771 (4th Cir. 2004)

(providing standard); United States v. Ceccarani, 98 F.3d 126, 130-

31   (3d    Cir.   1996)   (upholding   the   denial   of   acceptance   of

responsibility based on new unrelated criminal conduct).

             In accordance with Anders, we have reviewed the entire

record in this case for any other meritorious issue and have found

none.      Accordingly, although we affirm Dunlap’s conviction, we

vacate his sentence and remand for proceedings consistent with

Hughes, 401 F.3d at 546 (citing Booker, 125 S. Ct. at 764-65,

767).2     We dispense with oral argument because the facts and legal


     1
      As we noted in Hughes, 401 F.3d at 545 n.4, “[w]e of course
offer no criticism of the district judge, who followed the law and
procedure in effect at the time” of Dunlap’s sentencing.       See
generally Johnson v. United States, 520 U.S. 461, 468 (1997)
(stating that an error is “plain” if “the law at the time of trial
was settled and clearly contrary to the law at the time of
appeal”).
     2
      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,

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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




making all factual findings appropriate for that determination.
Hughes, 401 F.3d at 546. The court should consider this sentencing
range along with the other factors described in 18 U.S.C.A.
§ 3553(a) (West 2000 & Supp. 2005), 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.A. § 3553(c)(2).    Id.  The sentence must be “within the
statutorily prescribed range and . . . reasonable.” Id. at 547.

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