                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 04-4728



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

          versus


JAMAR MARQUISE BLANDIN, a/k/a Jamar Anthony
Blandin,

                                              Defendant - Appellant.


Appeal from the United States District Court for the District of
South Carolina, at Charleston.   Patrick Michael Duffy, District
Judge. (CR-03-324)


Submitted:   October 28, 2005          Decided:     November 15, 2005


Before WILKINSON, LUTTIG, and DUNCAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


John A. O’Leary, O’LEARY ASSOCIATES, P.A., Columbia, South
Carolina, for Appellant. J. Strom Thurmond, Jr., United States
Attorney, Alston C. Badger, Assistant United States Attorney,
Charleston, South Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Jamar       Marquise    Blandin,        a/k/a      Jamar      Anthony       Blandin

(“Blandin”),       pled        guilty    to     one     count       of        possession      and

distribution       of     cocaine       base,      in      violation          of   21   U.S.C.

§§ 841(a)(1)&(b)(1)(B) (2000) (“Count One”); one count of the use

and carrying of a firearm during and in relation to a drug

trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A) (2000)

(“Count Two”); and one count of possession of a firearm by a

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

924(a)(2) (2000) (“Count Four”).                Blandin was sentenced to a term

of 97 months imprisonment as to each of Counts One and Four, to run

concurrently, and 60 months as to Count Two, to run consecutively

to the terms for Counts One and Four, with five years of supervised

release.    Blandin appeals, contending that Blakely v. Washington,

124   S.   Ct.    2531     (2004),      applies         to    the     federal      sentencing

guidelines; that the district court erred in finding as a fact that

his offense was based on an enhanced drug amount pursuant to U. S.

Sentencing       Guidelines       Manual      (“USSG”)        §     2D1.1(c)(6)1        and    in

determining that he had a criminal history category of III, based

on three prior convictions and a two-level enhancement pursuant to

USSG § 4A1.1(d).         We affirm.



      1
      Although Blandin appears to challenge the base level offense
recommended for Count Four, this offense level was not applied to
determine the applicable guidelines range, based on the grouping of
Count One and Count Four pursuant to USSG §§ 3D1.2(c) and 3D1.3(a).

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           Because Blandin preserved these issues by objecting to

the presentence report and at his sentencing hearing based upon

Blakely, this court’s review is de novo.            See United States v.

Mackins, 315 F.3d 399, 405 (4th Cir. 2003) (“If a defendant has

made a timely and sufficient Apprendi sentencing objection in the

trial court, and so preserved his objection, we review de novo.”)

(citation omitted).      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)).

           First, even if the disputed quantity of drugs was removed

from the presentence calculation, Blandin’s sentence as to Counts

One and Four would not have been altered. Absent any enhancements,

the total offense level for Count One and Count Four would be

twenty-six, based on the drug amount stated in the indictment (more

than five grams of cocaine base).          U.S. Sentencing Guidelines

Manual (“USSG”) § 2D1.1(c)(7) (2003).        The recommended guideline

range for a total offense level of twenty-six, with a criminal

history category of III, is 78 to 97 months imprisonment.        See USSG


                                  - 3 -
Ch. 5 Pt. A (Sentencing Table).   Because Blandin’s actual sentence

as to Counts One and Four does not exceed the maximum of this

range, there was no Sixth Amendment violation.     See United States

v. Evans, 416 F.3d 298, 300-01 (4th Cir. 2005) (holding that if

sentence does not exceed maximum authorized by facts admitted by

defendant or found by jury, there is no Sixth Amendment violation).

     Next, as this court recently made clear in United States v.

Robinson, 404 F.3d 850, 862 (4th Cir. 2005), petition for cert.

filed, ___ U.S.L.W. ___ (U.S. Aug. 12, 2005) (No. 05-5772), “Booker

did nothing to alter the rule that judges cannot depart below a

statutorily provided minimum sentence.”        Count Two, Blandin’s

firearm charge, was subject to a statutory minimum of sixty months’

imprisonment.2   See § 924(c)(1)(A)(i) (imposing a term of not less

than five years’ imprisonment for any person who, during and in

relation to a drug trafficking crime, uses or carries a firearm, or

who, in furtherance of the crime, possesses a firearm).    Thus, the

district court was required by statute to impose a mandatory

minimum term of five years for the offense.       In this situation,

there is simply no Booker error.       See Robinson, 404 F.3d at 862

(“[Even after Booker], a district court has no discretion to impose



     2
      To the extent Blandin challenges the base level offense of
twenty that was recommended for Count Four, felon in possession of
a firearm, pursuant to USSG § 2K2.1(a)(4)(a), his objection is
mooted by the grouping that was applied to Count One and Count
Four.   Even considering this objection, for the reasons stated
above, Blandin’s argument fails on the merits.

                               - 4 -
a sentence outside of the statutory range established by Congress

for the offense of conviction.”).

          Finally, the Supreme Court in Booker also reaffirmed its

prior holding in Apprendi that “[a]ny fact (other than a prior

conviction) which is necessary to support a sentence exceeding the

maximum authorized by the facts established by a plea of guilty or

a jury verdict must be admitted by the defendant or proved to a

jury beyond a reasonable doubt.”    Booker, 125 S. Ct. at 756.   The

application of the career offender enhancement falls within the

exception for prior convictions when the facts were undisputed,

making it unnecessary to engage in further fact finding about a

prior conviction.   United States v. Collins, 412 F.3d 515, 521-23

(4th Cir. 2005); see Shepard v. United States, 125 S. Ct. 1254,

1263 (2005) (holding that a court’s inquiry as to disputed facts in

connection with a prior conviction is limited to the terms of the

charging document, a plea agreement, a transcript of the plea

colloquy, or a comparable judicial record).       Thus, the Court

concluded that there was no Sixth Amendment violation.    Collins,

412 F.3d at 523.

          Although Blandin incorrectly states that he was sentenced

as a career offender, any argument that under Booker, the district

court violated his Sixth Amendment rights by making impermissible

factual findings when it used his prior convictions to enhance his

sentence or to compute his criminal history is foreclosed by


                               - 5 -
Collins and Shepard. Blandin does not contest with any specificity

the facts about his prior convictions that were used to calculate

his criminal history score.    As a result, the issue raised by

Blandin is a purely legal argument.     See United States v. Cheek,

415 F.3d 349, 350 (4th Cir. 2005) (holding that Sixth Amendment not

violated when sentence enhanced based on prior convictions that

were not charged in indictment or admitted by defendant).        We

therefore find no Sixth Amendment violation.

          Accordingly, we affirm Blandin’s 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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