                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 04-4068



UNITED STATES OF AMERICA,

                                             Plaintiff - Appellee,

          versus


CHAD ERIC SIMPSON,

                                            Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Graham C. Mullen, Chief
District Judge. (CR-01-189)


Submitted:   May 25, 2005                   Decided:   July 6, 2005


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


Affirmed in part, vacated in part, and remanded by unpublished per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


Chiege O. Kalu Okwara, LAW OFFICE OF CHIEGE O. KALU OKWARA,
Charlotte, North Carolina, for Appellant. Gretchen C. F. Shappert,
United States Attorney, Jennifer Marie Hoefling, Assistant United
States Attorney, Charlotte, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

           Chad Eric Simpson pled guilty to conspiracy to possess

with intent to distribute and distribute cocaine, methamphetamine,

and Ecstasy, 21 U.S.C. § 846 (2000) (Count One); aiding and

abetting kidnapping, 18 U.S.C. §§ 1201, 2 (2000) (Count Five); and

brandishing a firearm during a crime of violence, aiding and

abetting, 18 U.S.C. §§ 924(c), 2 (2000) (Count Six).                   He was

sentenced to a term of 294 months imprisonment.              Simpson appeals

his sentence, contending for the first time that the district court

erred under Blakely v. Washington, 124 S. Ct. 231 (2004), when it

applied the cross reference from kidnapping to attempted murder,

U.S. Sentencing Guidelines Manual §§ 2A4.1(b)(7), 2A2.1 (2003),

although he did not admit participating in attempted murder.

Simpson also contests the enhancements made under § 2A2.1 for

kidnapping and permanent or life-threatening bodily injury and

under § 3A1.3 for physical restraint.            He further claims that the

court erred by failing to depart downward based on his claim of

coercion and duress and other grounds.             Last, he challenges the

court’s calculation of his criminal history.                 For the reasons

explained below, we affirm the court’s determination of Simpson’s

criminal   history,   but   we   vacate    the    sentence   and   remand   for

resentencing.

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

Supreme Court held that the federal sentencing guidelines, under


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which courts were required to impose sentencing enhancements based

on facts found by the court by a preponderance of the evidence,

violated the Sixth Amendment because of their mandatory nature.

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). Although

Simpson did not raise a Sixth Amendment challenge at sentencing,

this court has held that a mandatory enhancement based on judicial

factfinding    supported   by   a     preponderance   of   the    evidence

constitutes plain error warranting correction when the sentence

“exceeded the maximum allowed based on the facts found by the jury

alone” and the record does not disclose what discretionary sentence

the district court would have imposed under an advisory guideline

scheme.   United States v. Hughes, 401 F.3d 540, 547-48 (4th Cir.

2005) (citing United States v. Olano, 507 U.S. 725, 731-32 (1993)).

          In light of Booker and Hughes, we find that the district

court plainly erred in sentencing Simpson and that the error was

prejudicial.   We thus exercise our discretion to notice the error

and remand for resentencing.

          Simpson claims that the court erred in refusing to depart

downward. However, the district court’s discretionary decision not

to depart below the guideline range is not reviewable unless the


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court’s decision was based on a mistaken belief that it lacked

authority to depart.        United States v. Wood, 378 F.3d 342, 351 n.8

(4th Cir. 2004).       Our review of the district court’s ruling on

Simpson’s departure motion leaves us convinced that the district

court   understood     its   authority      to   depart    and   exercised    its

discretion not to depart.

           We   find   no    merit   in    Simpson’s      contention   that   the

district court erred in awarding one criminal history point for

each of the Kentucky sentences listed in ¶¶ 38 and 39 of the

presentence report (a fine and two days imprisonment) and for the

North Carolina probationary sentence listed in ¶ 40 because he was

not represented by counsel in any of these proceedings.                He claims

that the district court did not address his contention that he was

denied counsel because the state court judge did not intend to

impose a sentence of imprisonment (¶ 38) or any additional jail

time (¶¶ 39, 40).

           We note first that the presentence report contained

information that Simpson waived counsel in the North Carolina

proceeding described in ¶ 40.             Although Simpson asserted in the

district court that any waiver was not knowing and voluntary, he

offered no evidence in support of his claim.               With respect to the

other sentences, Simpson’s Kentucky driving-while-impaired offenses

were both misdemeanors, punishable as first and second offenses by

a maximum of thirty days and six months imprisonment, respectively.


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Ky. Rev. Stat. Ann.     § 189A.010 (Baldwin 2004).1   The background

commentary to USSG § 4A1.2 states that all “[p]rior sentences, not

otherwise excluded, are to be counted in the criminal history

score,     including   uncounseled   misdemeanor   sentences    where

imprisonment was not imposed.”       However, in Nichols v. United

States, 511 U.S. 738, 748-49 (1994), the Supreme Court held that a

prior uncounseled misdemeanor conviction may be used to enhance the

sentence for a subsequent offense only if no prison term was

imposed.     Simpson did not receive any prison sentence for the

conviction described in ¶ 38, but he served two days in prison for

the conviction in ¶ 39.

            A defendant may challenge at sentencing the validity of

a prior conviction on the ground that he was denied counsel,

Custis v. United States, 511 U.S. 485, 495 (1994).      However, he

bears the burden of showing that the prior conviction is invalid.

United States v. Jones, 977 F.2d 105, 110 (4th Cir. 1992).     Simpson

had to overcome the presumption that the state court informed him

of his right to counsel as it was required by statute to do and

that, if he was not represented, it was because he waived his right

to counsel.    Parke v. Raley, 506 U.S. 20, 28-34 (1992) (holding


     1
      For guideline purposes, a “felony offense” means any offense
punishable by a term of imprisonment exceeding one year, even an
offense classified as a misdemeanor under state law, United
States v. Raynor, 939 F.2d 191, 194-95 (4th Cir. 1991), and even
though, after the defendant’s conviction, the maximum sentence may
have been reduced to less than a year. United States v. Johnson,
114 F.3d 435, 445 (4th Cir. 1997).

                                - 5 -
that presumption of regularity that attaches to final judgments

makes it appropriate for defendant to have burden of showing

irregularity of prior plea).    He did not meet this burden because

he did not present either evidence or testimony to establish that

he had not waived counsel.   We conclude that the court did not err

in finding that Simpson had not been denied his right to counsel.

          In   conclusion,     we   affirm    the   district   court’s

determination of Simpson’s criminal history score, but we vacate

his sentence and remand for proceedings consistent with Hughes.2

Id. at 546 (citing Booker, 125 S. Ct. at 764-65, 767 (Breyer, J.,

opinion of the Court)).   Just as we noted in Hughes, “[we of course

offer no criticism of the district court judge, who followed the

law and procedure in effect at the time” of Simpson’s sentencing.

Hughes, 401 F.3d at 545 n.4.        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”).     We dispense with oral argument


     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,
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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because the facts and legal 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




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