                               UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                               No. 04-4932



UNITED STATES OF AMERICA,

                                                 Plaintiff - Appellee,

          versus


DONALD PHILLIP SMITH,

                                                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-03-443)


Submitted:   August 18, 2005                 Decided:   August 23, 2005


Before WIDENER, WILLIAMS, and MICHAEL, Circuit Judges.


Affirmed by unpublished per curiam opinion.


David B. Freedman, WHITE AND CRUMPLER, Winston-Salem, North
Carolina, for Appellant.     Anna Mills Wagoner, United States
Attorney, Sandra J. Hairston, L. Patrick Auld, Assistant United
States Attorneys, Greensboro, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

           Donald Phillip Smith, appeals his sentence following his

guilty plea to two counts of distribution of cocaine in violation

of 21 U.S.C. §§ 841(a)(1) and (b)(1)(c) (2000) 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).            On appeal, Smith asserts that

his sentence violated both United States v. Booker, 125 S. Ct. 738

(2005) and United States v. Fanfan, 125 S. Ct. 738 (2005).            Finding

no reversible error, we affirm.

           Smith first asserts that his sentence violates the Sixth

Amendment because he was sentenced as a career offender.1                 This

argument is foreclosed by the Supreme Court’s reaffirmation of the

Almendarez-Torres2 prior conviction exception in Booker.                    See

Booker,   125   S.   Ct.   at   756   (“Any    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.”).            Likewise, the application of



     1
      We note that Smith’s two-level enhancement for possession of
a dangerous weapon does not implicate Booker because the facts
underlying this enhancement were admitted by the defendant in his
factual basis for his plea. We further note that Smith’s two-level
enhancement for obstruction of justice does not implicate Booker
because Smith received a higher sentence under the career offender
provision, which did not take the obstruction of justice finding
into account.
     2
      Almendarez-Torres v. United States, 523 U.S. 224 (1998).

                                      - 2 -
the prior conviction exception to Smith does not raise any of the

problems outlined in United States v. Shepard, 125 S. Ct. 1254,

1262-63 (2005), or United States v. Washington, 404 F.3d 834, 843

(4th   Cir.    2005),   because    no   facts    related   to   Smith’s   prior

convictions are in dispute.

              Smith   next   asserts     that     although      his   two-level

enhancement for obstruction of justice did not play a role in his

base offense level, which was calculated under the career offender

provision, the district court relied on that enhancement when it

denied his request for a two-level reduction for acceptance of

responsibility.       This argument is foreclosed by our decision in

United States v. Evans, ___ F.3d ___, 2005 WL 1705531, at *1 n.4

(4th Cir. July 22, 2005) (No. 04-4522), which stated that for

purposes      of   determining    whether    a   Sixth   Amendment    violation

occurred, the sentence imposed is compared against the guideline

range that was properly determined before any adjustments are made

for acceptance of responsibility.

              Finally, Smith asserts that his mandatory guidelines

sentence violated the Sixth Amendment.            Because this claim was not

preserved for appellate review, it is reviewed for plain error. We

have reviewed the record and find that the district court did not

plainly err in treating the guidelines as mandatory since there is

no evidence of prejudice as required under United States v. White,

405 F.3d 208, 223 (4th Cir. 2005).


                                     - 3 -
           For the foregoing reasons, we affirm Smith’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 decision process.



                                                                  AFFIRMED




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