                               UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                               No. 04-4705



UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

          versus


ERNEST GENE HUMPHRIES, III,

                                              Defendant - Appellant.



Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. William L. Osteen, District
Judge. (CR-04-18; CR-04-19)


Submitted:   August 10, 2005            Decided:   September 19, 2005


Before NIEMEYER, LUTTIG, and GREGORY, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Louis C. Allen, III, Federal Public Defender, Greensboro, North
Carolina, for Appellant.     Anna Mills Wagoner, United States
Attorney, Michael F. Joseph, 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Unpublished opinions are not binding precedent in this circuit.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:

           Ernest Gene Humphries, III, pled guilty to two counts of

bank robbery in violation of 18 U.S.C. § 2113(a) (2000).            He was

sentenced to a 151-month term of imprisonment on both counts, to

run concurrently.     On appeal, Humphries, challenging only his

sentence, claims that he was improperly sentenced under the United

States Sentencing Guidelines in light of Blakely v. Washington, 542

U.S. 296 (2004), and United States v. Booker, 125 S. Ct. 738

(2005).

           At sentencing on August 6, 2004, Humphries argued that

Blakely   v.   Washington,   542   U.S.    296   (2004),   invalidated   the

guidelines and the career offender provisions of the guidelines.

He also argued that one of his predicate offenses that qualified

him as a career offender, a state conviction for attempted common

law robbery, would not qualify as a crime punishable by a term of

imprisonment of one year if the Blakely holding applied to the

sentencing of the common law robbery case.            The district court

rejected these objections.

           The Supreme Court held in United States v. Booker, 125 S.

Ct. 738, 746, 750 (2005), that the mandatory manner in which the

federal 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.          The Court remedied

the constitutional violation by severing two statutory provisions,


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18   U.S.C.    §    3553(b)(1)   (2000)      (requiring   courts    to    impose   a

sentence within the applicable guideline range), and 18 U.S.C.

§ 3742(e) (2000) (setting forth appellate standards of review for

guideline issues), thereby making the guidelines advisory.                  United

States v. Hughes, 401 F.3d 540, 546                   (4th Cir. 2005) (citing

Booker, 125 S. Ct. at 756-57).

              In United States v. Harp, this court, applying the plain

error standard, found that, even if the district court committed

plain error when it determined that the defendant was a career

offender without the elements of that designation having been

charged   in       an   indictment,   this    court   would   not   exercise    its

discretion to correct that error.               406 F.3d 242, 247 (4th Cir.

2005). While Harp viewed the issue through a plain error analysis,

other circuits have directly answered this issue. “Career offender

status is not ‘a sentencing judge’s determination of a fact other

than a prior conviction.’ . . . Booker explicitly excepts from

Sixth Amendment analysis the third component of the crime of

violence determination, the fact of two prior convictions.” United

States v. Guevara, 408 F.3d 252, 261 (5th Cir. 2005).                    The Eighth

Circuit has ruled that a prior conviction need not be submitted to

a jury or proved beyond a reasonable doubt.                   United States v.

Marcussen, 403 F.3d 982, 984 (8th Cir. 2005). “Once the sentencing

court determines that a prior conviction exists, it is a legal

question for the court whether the crime meets the ‘crime of


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violence’ definition of § 4B1.2.”              Id.; see also United States v.

Schlifer, 403 F.3d 849, 853 (7th Cir. 2005) (the district court did

not   engage    in    impermissible      factfinding      with      respect    to   its

determination        that   defendant    was    a   career    offender,       and   his

sentence did not violate the Sixth Amendment).                        We therefore

conclude that there was no reversible error in applying the career

offender enhancement.

            Humphries       also   argues      that   one    of     the    underlying

offenses,      attempted     common     law    robbery,     which    counted     as   a

qualifying predicate offense for the application of United States

Sentencing      Guidelines     §   4B1.1       (2003),    the     career      offender

guideline, should no longer be counted as a qualifying offense

because post-Blakely, Humphries’ conviction was not punishable for

more than one year.          In order for Humphries to be designated a

career offender, the Government had to establish that Humphries had

at least two prior felony convictions for either a “crime of

violence” or a “controlled substance offense.”                    USSG § 4B1.1(a).

A felony offense is one punishable by over one year in prison.

            The pre-sentence report (PSR) cited three qualifying

convictions, when only two are needed to qualify as a career

offender.      The PSR lists the convictions for felonious possession

with intent to sell or deliver marijuana, felonious attempted

robbery, and misdemeanor assault with a deadly weapon.                     Humphries

contends that post-Blakely, on the attempted robbery conviction, he


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could no longer be sentenced to over one year.               This is the same

argument advanced by the defendant in Harp and rejected by this

court.       Harp, 406 F.3d at 246-47.         Finally, as the Government

notes, even without consideration of the contested conviction,

Humphries has the requisite two qualifying convictions needed to

apply the enhancement.       We therefore conclude that the district

court did not err in designating Humphries as a career offender and

that the enhancement does not violate the Sixth Amendment.

              Humphries also challenges his criminal history category

under the Sixth Amendment, because the facts giving rise to these

calculations were not charged in the indictment or proven beyond a

reasonable doubt.       Humphries asserts that the court had to make

factual findings beyond the mere fact of conviction.                  Although

Humphries points to no specific findings by the district court, he

generally asserts that the factual findings necessary to apply the

guidelines’ criminal history provisions make those provisions very

different from the simple finding of the fact of a conviction.

              In Apprendi v. New Jersey, 530 U.S. 466 (2000), the

Supreme Court held “[o]ther than the fact of a prior conviction,

any   fact    that   increases   the    penalty   for   a   crime   beyond   the

prescribed statutory maximum must be submitted to a jury, and

proved beyond a reasonable doubt.”             Id. at 490.     In Booker, the

Supreme Court reaffirmed its holding in Apprendi.             See Booker, 125

S. Ct. at 756 (Stevens, J., opinion of the Court).              However, this


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court has stated that not all prior convictions fall within the

Apprendi exception framework.

          In United States v. Washington, 404 F.3d 834, 842 (4th

Cir. 2005), this court, applying the Supreme Court’s decision in

Shepard, held that relying on facts outside the indictment in order

to conclude a prior conviction for burglary was a crime of violence

that enhanced the defendant’s offense level was plain error.

Humphries’ case is distinguishable from the facts in Washington

because the district court’s assessment of criminal history points

in this case was based on the summary of the convictions in the

presentence report, to which Humphries did not raise any factual

objections, and involved determining only when Humphries committed

the past offenses relative to the date that he committed the

instant offenses.   Cf. United States v. Collins, 412 F.3d 515, 522

(4th Cir. 2005) (finding that application of career offender

enhancement did not violate Booker where facts were undisputed,

thereby making it unnecessary to engage in further fact finding

about a prior conviction). We therefore conclude that the district

court’s assessment of criminal history points did not violate the

Sixth Amendment.    See Shepard, 125 S. Ct. at 1263 (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); Washington, 404 F.3d at 842 n.10 (noting that the


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Government’s representations as to the disputed facts were not

specified in the charging and plea documents).

           We therefore affirm Humphries’ convictions 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




      *
       Humphries does not contest his convictions.

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