                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 07-4612



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

          versus


BRADLEY DALE WAYCASTER,

                                              Defendant - Appellant.


Appeal from the United States District Court for the Western
District of North Carolina, at Bryson City. Lacy H. Thornburg,
District Judge. (2:06-cr-00031-LHT)


Submitted:   December 19, 2007            Decided:   January 9, 2008


Before TRAXLER, GREGORY, and SHEDD, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Claire J. Rauscher, Ann Hester, FEDERAL DEFENDERS OF WESTERN NORTH
CAROLINA, INC., Charlotte, North Carolina, for Appellant. Amy E.
Ray, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North
Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

           Bradley    Dale    Waycaster    appeals      from      his    262-month

sentence   after   pleading    guilty     to   possession      with     intent   to

distribute methamphetamine and cocaine, in violation of 21 U.S.C.

§ 841(a)(1) (2000).    Waycaster’s counsel filed a brief pursuant to

Anders v. California, 386 U.S. 738 (1967), stating that there are

no meritorious issues for appeal, but asking this court to review

whether the district court violated Waycaster’s Fifth and Sixth

Amendment rights by enhancing his sentence, pursuant to U.S.

Sentencing Guidelines Manual (“USSG”) § 4B1.1 (2006), based on

prior convictions that had not been found by a jury or admitted by

him.   Waycaster filed a pro se supplemental brief in which he

asserts that he should have received a downward departure pursuant

to USSG § 5K1.1.     Finding no error, we affirm.

           Because   Waycaster    failed       to   object   to    the   district

court’s enhancement of his offense level, this court reviews the

claim for plain error.       Fed. R. Crim. P. 52(b); United States v.

Olano, 507 U.S. 725, 731-32 (1993).            While Waycaster contends on

appeal that the district court erred by increasing his sentence

based on facts that were not submitted to a jury or admitted by

him, prior convictions do not need to be determined by a jury

beyond a reasonable doubt. See Almendarez-Torres v. United States,

523 U.S. 224, 233-36, 243-44 (1998); see also United States v.

Cheek, 415 F.3d 349, 351-54 (4th Cir.) (reaffirming continuing


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validity of Almendarez-Torres after United States v. Booker, 543

U.S. 220 (2005)), cert. denied, 546 U.S. 1010 (2005).                    The nature

and    occasion      of     prior    offenses       are   facts   inherent    in   the

convictions and the Government is not required to allege prior

convictions in the indictment or submit proof of them to a jury.

See United States v. Thompson, 421 F.3d 278, 285-87 (4th Cir.

2005), cert. denied, 547 U.S. 1005 (2006); see also Shepard v.

United States, 544 U.S. 13, 25 (2005).                    Therefore, the district

court   did    not    err    in     using    Waycaster’s    prior   convictions     in

determining his sentence on the present conviction.

              In his pro se supplemental brief, Waycaster asserts that

he    provided    the     Government        with    information   and   should     have

received a downward departure pursuant to USSG § 5K1.1.                      However,

the filing of a motion for downward departure was within the

Government’s sole discretion, as the Government was not required to

move for a reduction under the terms of the plea agreement.                    Nor is

there any evidence in the record that the refusal was based on an

unconstitutional motive.             See Wade v. United States, 504 U.S. 181,

185-86 (1992).        Accordingly, Waycaster’s claim is meritless.

              In accordance with Anders, we have reviewed the record in

this case and have found no meritorious issues for appeal.                          We

therefore affirm Waycaster’s sentence. This court requires counsel

inform his client, in writing, of his right to petition the Supreme

Court of the United States for further review.                       If the client


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requests that a petition be filed, but counsel believes that such

a petition would be frivolous, then counsel may move in this court

for leave to withdraw from representation.   Counsel’s motion must

state that a copy thereof was served on the client.    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




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