                             UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                             No. 04-4825



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

          versus


LUIS ALBERTO VELASCO-GODINEZ,

                                              Defendant - Appellant.



Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. Frank W. Bullock, Jr.,
District Judge. (CR-04-134)


Submitted:   July 29, 2005            Decided:   September 26, 2005


Before WILKINSON, SHEDD, and DUNCAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Louis C. Allen, III, Federal Public Defender, William C. Ingram,
Assistant Federal Public Defender, Greensboro, North Carolina, for
Appellant. Anna Mills Wagoner, United States Attorney, Angela H.
Miller, Assistant United States Attorney, Greensboro, North
Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Pursuant to a plea agreement, Luis Alberto Velasco-

Godinez pled guilty to illegal reentry by a deported alien after

conviction of an aggravated felony, in violation of 8 U.S.C.

§ 1326(a) & (b)(2) (2000).         The district court sentenced Velasco-

Godinez under the Federal Sentencing Guidelines to twenty-three

months in prison. Velasco-Godinez timely appealed, challenging the

district court’s calculation of his criminal history score.                   We

affirm.

            Velasco-Godinez        contends     that     his    sentence     is

unconstitutional in light of Blakely v. Washington, 542 U.S. 296

(2004).     Because he preserved this issue by objecting to the

presentence report based upon Blakely, this court’s review is de

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

When a defendant preserves a Sixth Amendment error, this court

“must    reverse   unless   [it]    find[s]    this    constitutional      error

harmless beyond a reasonable doubt, with the Government bearing the

burden of proving harmlessness.”             Id. (citations omitted); see

United    States   v.   White,   405   F.3d   208,     223   (4th   Cir.   2005)

(discussing difference in burden of proving that error affected

substantial rights under harmless error standard in Fed. R. App. P.

52(a), and plain error standard in Fed. R. App. P. 52(b)).

            In United States v. Booker, 125 S. Ct. 738 (2005), the

Supreme Court held that the mandatory manner in which the Federal


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Sentencing     Guidelines   required    courts      to      impose   sentencing

enhancements based on facts found by the court by a preponderance

of the evidence violated the Sixth Amendment.                 Id. at 746, 750

(Stevens, J., opinion of the Court).             The Court remedied the

constitutional violation by making the Guidelines advisory through

the removal of two statutory provisions that had rendered them

mandatory.    Id. at 746 (Stevens, J., opinion of the Court); id. at

756-57 (Breyer, J., opinion of the Court).

            In calculating Velasco-Godinez’s criminal history score,

the district court assigned four criminal history points based upon

prior convictions and two criminal history points based upon the

court’s finding that Velasco-Godinez committed the instant offense

while   a   probation   violation    warrant    was      outstanding.      U.S.

Sentencing Guidelines Manual § 4A1.1 (2003).                   Thus, Velasco-

Godinez’s criminal history score placed him in Criminal History

Category III.      Based on this criminal history category and an

offense level of 13, Velasco-Godinez’s guideline range was eighteen

to twenty-four months imprisonment.

            Regarding   his   criminal       history      points     for   prior

convictions,    Velasco-Godinez     argues   that     the    factual   findings

required to determine whether particular convictions are countable

and how many points are assessed involve more than the mere fact of

a prior conviction and therefore are subject to the requirements of

Blakely. In Almendarez-Torres v. United States, 523 U.S. 224, 233-


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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.             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   subsequently    confirmed    that

Almendarez-Torres was not overruled by Apprendi, and remains the

law.   United States v. Cheek, 415 F.3d 349 (4th Cir. 2005); see

United States v. Sterling, 283 F.3d 216, 220 (4th Cir. 2002); see

generally   Shepard   v.   United    States,    125   S.   Ct.   1254   (2005)

(discussing documents that a sentencing court may consider in

determining whether a prior conviction is considered a violent

felony).

            Turning to the two criminal history points assessed

because Velasco-Godinez committed the instant offense while a

probation violation warrant was outstanding, we find that any error

in assessing these points is harmless because even without the two

points, Velasco-Godinez’s criminal history score would place him in

Criminal History Category III.          USSG Ch. 5, Pt. A (Sentencing

Table).

            Furthermore, to determine the guideline range free of

judicial enhancements, this court uses the defendant’s “guideline

range based on the facts he admitted before adjusting that range


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for acceptance of responsibility.”             United States v. Evans, 416

F.3d 298, 300 n.4 (4th Cir. 2005). In this case, Velasco-Godinez’s

offense level without the three-level adjustment for acceptance of

responsibility would be 16.         The guideline range for offense level

16 and criminal history category III is twenty-seven to thirty-

three months imprisonment.         USSG Ch. 5, Pt. A (Sentencing Table).

Velasco-Godinez’s twenty-three month sentence does not exceed the

maximum sentence authorized by the facts he admitted.              Evans, 416

F.3d at 300.

            For   the   reasons    stated,     we   affirm   Velasco-Godinez’s

conviction and sentence.          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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