                             UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                             No. 06-5083



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

          versus


KEVIN WASHINGTON,

                                              Defendant - Appellant.


Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Malcolm J. Howard, Senior
District Judge. (5:05-cr-00251)


Submitted:   July 6, 2007                  Decided:   August 3, 2007


Before MICHAEL, SHEDD, and DUNCAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant. George E. B. Holding, United States Attorney, Anne M.
Hayes, Jennifer P. May-Parker, Assistant United States Attorneys,
Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

              Kevin Washington was convicted by a jury of one count of

possession of more than fifty grams of cocaine base, in violation

of 21 U.S.C. § 841(a)(1) (2000).              In accordance with 21 U.S.C.

§ 841(b)(1)(A) (2000), Washington was sentenced by the district

court to life imprisonment without release.              Finding no error, we

affirm.

              On appeal, Washington first contends that the district

court abused its discretion in denying his request for a jury

instruction on mere presence.         The decision whether to give a jury

instruction, and the content of that instruction, are reviewed for

an abuse of discretion.        United States v. Burgos, 55 F.3d 933, 935

(4th Cir. 1995).        “This court reviews jury instructions in their

entirety and as part of the whole trial” to determine “‘whether the

court adequately instructed the jury on the elements of the offense

and the accused’s defenses.’”            United States v. Bostian, 59 F.3d

474, 480 (4th Cir. 1995) (quoting United States v. Fowler, 932 F.2d

306, 317 (4th Cir. 1991)).

              Thus, a district court’s refusal to provide a requested

instruction      will   only     constitute    reversible       error   “if   the

instruction: ‘(1) was correct; (2) was not substantially covered by

the court’s charge to the jury; and (3) dealt with some point in

the   trial    so   important,    that    failure   to   give    the    requested

instruction seriously impaired the defendant's ability to conduct


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his defense.’”     United States v. Lewis, 53 F.3d 29, 32 (4th Cir.

1995) (quoting United States v. Camejo, 929 F.2d 610, 614 (11th

Cir. 1991)).

          Based on the evidence presented at trial, we conclude an

instruction on mere presence was not warranted.       The district

court’s jury instructions, viewed in their entirety, adequately

addressed the elements of the offense and relevant definitions.

Therefore, the district court did not abuse its discretion in

refusing to give the requested instruction.

          Next, Washington contends his sentence violates the Sixth

Amendment because his prior convictions were found by the district

court rather than submitted to a jury.      However, as Washington

concedes, his argument is foreclosed by United States v. Smith, 451

F.3d 209, 224 (4th Cir.), cert. denied, 127 S. Ct. 197 (2006),

which determined that “[b]ecause [21 U.S.C. § 851 (2000)] permits

judicial factfinding on a defendant’s prior convictions, it falls

within the prior conviction exception” to the defendant’s Sixth

Amendment right to trial by jury.    Moreover, we have consistently

held that a district court may enhance a sentence based on the

“fact of a prior conviction” regardless of whether or not it was

admitted to by the defendant or found by a jury.   United States v.

Thompson, 421 F.3d 278, 282 (4th Cir. 2005), cert. denied, 126 S.

Ct. 1463 (2006).




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           Washington finally contends that his sentence of life

imprisonment without release under § 841(b)(1)(A) violates the

Eighth Amendment because it is disproportionate to the offense

committed and deprives him of his right to an individualized

sentence. As conceded by Washington, we have previously considered

and rejected a similar challenge in United States v. Kratsas, 45

F.3d 63 (4th Cir. 1995).        In Kratsas, we applied the three-part

test of Solem v. Helm, 463 U.S. 277 (1983),* which examines: “(1)

the gravity of the offense and the harshness of the penalty, (2)

the sentences imposed on other criminals in the same jurisdiction,

and (3) the sentences imposed for commission of the same crime in

other jurisdictions.”     Kratsas, 45 F.3d at 66.

           Under the first prong of the Solem test, it is clear that

the gravity of Washington’s offense is great.                He was not only

found to have possessed with the intent to distribute more than

fifty grams of cocaine base in the instant offense, but has also

been previously convicted of four felony drug offenses.             As to the

second   and   third   prongs   of   the     Solem   test,   this   court   has

previously held that a life sentence without release for a major

drug violation is not disproportionate in comparison with other


     *
      Though the applicability of the Solem test was called into
some doubt by the three separate and somewhat conflicting opinions
issued by the Supreme Court in Harmelin v. Michigan, 501 U.S. 957
(1991) (plurality opinion), this court has continued to apply the
Solem test in conducting proportionality review. See Kratsas, 45
F.3d at 67.

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sentences under the Guidelines or sentences imposed by states

within the Fourth Circuit.   See id. at 68; see also United States

v. D’Anjou, 16 F.3d 604, 613 (4th Cir. 1994).     Thus, we conclude

Washington’s sentence is not constitutionally disproportionate.

Moreover, we conclude Washington’s contention that the mandatory

nature of his sentence renders it unconstitutional is unavailing

under this court’s precedent.   See Kratsas, 45 F.3d at 69; see also

D’Anjou, 16 F.3d at 613.

           Accordingly, we affirm the judgment of the district

court.   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 in the decisional process.



                                                           AFFIRMED




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