                               UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                               No. 04-4234



UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

          versus


JACQUES WALKER,

                                              Defendant - Appellant.


Appeal from the United States District Court for the District of
Maryland, at Baltimore. Catherine C. Blake, District Judge. (CR-
03-238-CCB)


Submitted:   August 19, 2005            Decided:   September 23, 2005


Before TRAXLER and KING, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


David W. Lease, SMITH, LEASE & GOLDSTEIN, L.L.C., Rockville,
Maryland, for Appellant.     Thomas M. DiBiagio, United States
Attorney, Michael J. Leotta, Assistant United States Attorney,
Baltimore, Maryland, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Jacques   Walker   appeals   his   total   360-month   sentence

following a jury trial for being a felon in possession of a firearm

in violation of 18 U.S.C. § 922(g), possession with intent to

distribute marijuana in violation of 21 U.S.C. § 841(a), and

possession of a firearm in furtherance of a drug trafficking crime

in violation of 18 U.S.C. § 924(c).       We affirm his convictions and

sentence.

            Walker challenges his convictions on several grounds and

challenges his sentence under Blakely v. Washington, 542 U.S. 296

(2004).     He argues:   (1) the district court erred in denying his

motion to suppress evidence; (2) insufficiency of the evidence

regarding the possession with intent to distribute marijuana count;

(3) insufficiency of the evidence regarding the § 924(c) count; (4)

the district court erred in giving a flight instruction to the jury

when there was no evidence of Walker’s flight; (5) the district

court improperly gave examples in a jury instruction of how a

firearm may be used in furtherance of a drug trafficking crime

under § 924(c) when some examples were not supported by the

evidence; (6) Congress lacked the constitutional authority to enact

the felon in possession statute, § 922(g), under the Commerce

Clause; and (7) his sentence violated the Sixth Amendment under

Blakely because it was enhanced based on judicial findings of prior

convictions and because the guidelines are unconstitutional. After


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United States v. Booker, 125 S. Ct. 738 (2005), issued, Walker

filed two letters under Fed. R. App. P. 28(j) asserting his

sentence   was    in    violation   of   Booker      and   later   asserting    his

enhancements for prior convictions were in violation of United

States v. Shepard, 125 S. Ct. 1254 (2005), and                  United States v.

Washington, 404 F.3d 834 (4th Cir. 2005).              The Government rejects

Walker’s challenges to his convictions and sentence.                   Regarding

Walker’s Blakely and Booker arguments, the Government argues the

district court did not plainly err in sentencing Walker because the

only judicial enhancements were based upon prior convictions.

           We reject Walker’s challenges to his convictions. First,

in looking at the totality of the circumstances, Illinois v. Gates,

462 U.S. 213, 230-32 (1983), we find the arresting officers had

probable cause to believe Walker had just committed a crime.                    Cf.

United States v. Al-Talib, 55 F.3d 923, 931 (4th Cir. 1995) (ruling

that police surveillance will support a finding of probable cause

where officers observe conduct that is consistent with a drug

transaction). Therefore, the evidence seized in a search of Walker

incident   to     his   arrest   and     Walker’s      spontaneous,    voluntary

statement regarding a firearm he possessed were admissible under

the Fourth Amendment.

           Next, taking the evidence in the light most favorable to

the Government, we find substantial evidence supported the jury

verdicts   both    on   the   possession       of   marijuana   with   intent    to


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distribute and on the possession of firearm in furtherance of a

drug trafficking crime counts.           See Glasser v. United States, 315

U.S. 60, 80 (1942) (stating standard of review).                With regard to

the intent to distribute element of a § 841(a) violation, we note

evidence       revealed   officers    witnessed     Walker   engaging     in   acts

consistent with a street-level drug transaction immediately prior

to Walker’s arrest.         Regarding the § 924(c) conviction, we find

there    was    significant    evidence,   substantially      more    than     mere

presence of the firearm at the scene, to support the jury’s verdict

that    Walker     possessed   a     firearm   in    furtherance     of   a    drug

trafficking crime.        See United States v. Lomax, 293 F.3d 701, 705

(4th Cir. 2002).

               Further, we find that the district court properly gave a

flight instruction to the jury because there was evidence of

Walker’s attempt to elude police once he believed police were

present.       Cf. United States v. Obi, 239 F.3d 662, 665 (4th Cir.

2001) (recognizing that consciousness of guilt may be inferred from

evidence of flight).

               We further find the district court’s jury instruction

regarding the § 924(c) count, which in part listed examples of how

a firearm might be used in furtherance of a drug trafficking crime,

was proper.       United States v. Lomax, 293 F.3d 701, 705 (4th Cir.

2002).




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             We   also   reject   Walker’s    challenge    to    his    felon   in

possession conviction on the ground that Congress lacked the

authority to enact the statute under the Commerce Clause.                    It is

well-established that the statute, which expressly requires an

interstate commerce nexus, is a valid congressional enactment under

the Commerce Clause.       United States v. Quarles, 330 F.3d 650, 651

n.2 (4th Cir.), cert. denied, 540 U.S. 977 (2003); United States v.

Gallimore, 247 F.3d 134, 138 (4th Cir. 2001); United States v.

Nathan, 202 F.3d 230, 234 (4th Cir. 2000).

             Finally, we review Walker’s challenges to his sentence.

Because the issues under Blakely and Booker are raised for the

first time on appeal, review is for plain error.                       See United

States v. Hughes, 401 F.3d 540, 547 (4th Cir. 2005).                   We find no

Sixth Amendment error in Walker’s sentencing.              Walker’s sentence

was enhanced under the career offender guidelines, USSG § 4B1.1,

based solely upon his prior convictions.                In both Blakely and

Booker, the Supreme Court reaffirmed its holding in Almendarez-

Torres v. United States, 523 U.S. 224, 244 (1998), that the fact of

a prior conviction need not be proven to a jury beyond a reasonable

doubt.   Booker, 125 S. Ct. at 756; Blakely, 542 U.S. at ___, 124 S.

Ct. at 2536.        Walker does not dispute the fact of his prior

convictions.      We conclude the predicates for designating Walker as

a   career   offender     were    satisfied   because     he    has    two   prior

convictions that on their face qualify as “controlled substance


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offenses” under USSG § 4B1.1. See USSG § 4B1.2 (defining predicate

offenses).

           Next, we turn to whether the district court’s mandatory

application of the guidelines constituted plain error.             We find

Walker   has   not   established   that    the   error   in   treating   the

guidelines as mandatory affected his substantial rights.                 See

United States v. White, 405 F.3d 208, 215-25 (4th Cir. 2005).            For

these reasons, we affirm Walker’s 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




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