                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                     ___________

                                     No. 05-1028
                                     ___________

United States of America,                 *
                                          *
             Appellee,                    *
                                          * Appeal from the United States
      v.                                  * District Court for the
                                          * Eastern District of Missouri.
Howard Smith, Jr.,                        *
                                          * [UNPUBLISHED]
             Appellant.                   *
                                     ___________

                              Submitted: March 22, 2006
                                 Filed: March 27, 2006
                                  ___________

Before MELLOY, FAGG, and BENTON, Circuit Judges.
                           ___________

PER CURIAM.

       Howard Smith, Jr., pleaded guilty to two counts of possessing 5 or more grams
of a mixture containing cocaine base with intent to distribute, in violation of 21 U.S.C.
§ 841(a)(1). Because an uncontested prior felony drug conviction subjected Smith to
statutory minimum penalties, see 21 U.S.C. § 841(b)(1)(B), the district court1
sentenced Smith to 10 years in prison on both counts--to run concurrently with each
other and another federal prison term--and 8 years supervised release.



      1
        The Honorable Rodney W. Sippel, United States District Judge for the Eastern
District of Missouri.
       On appeal, Smith’s counsel moves to withdraw and files a brief under Anders
v. California, 386 U.S. 738 (1967), arguing that Smith’s sentence is unconstitutional
under Blakely v. Washington, 542 U.S. 296 (2004), because there was no jury finding
as to his prior drug conviction. In a supplemental brief, Smith argues that his sentence
is unconstitutional under Blakely because it was increased to the statutory minimum
based on drug quantities in excess of what he admitted. We conclude these arguments
lack merit. Smith’s sentence was based on an uncontested prior felony drug
conviction and drug quantities he admitted. See 21 U.S.C. § 841(b)(1)(B) (imposing
10-year mandatory minimum for 5 grams or more of cocaine, if instant offense was
committed after prior conviction for felony drug offense has become final); United
States v. Alvarado-Rivera, 412 F.3d 942, 946 n.3 (8th Cir. 2005) (en banc)
(defendant’s Sixth Amendment rights are not violated if defendant admitted
responsibility for drug quantity), cert. denied, 126 S. Ct. 1096 (2006); United States
v. Thomas, 398 F.3d 1058, 1063-64 (8th Cir. 2005) (use of prior felony conviction to
increase statutory minimum penalties does not implicate Blakely or United States v.
Booker, 543 U.S. 220 (2005)).

      Having reviewed the record independently under Penson v. Ohio, 488 U.S. 75
(1988), we find no nonfrivolous issues. Accordingly, we affirm, and we grant
counsel’s motion to withdraw.
                      ______________________________




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