                               UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                               No. 07-4061



UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

          versus


BENJAMIN BOLIN,

                                              Defendant - Appellant.


Appeal from the United States District Court for the District of
South Carolina, at Aiken. Margaret B. Seymour, District Judge.
(1:04-cr-00121)


Submitted:   August 27, 2007            Decided:   September 10, 2007


Before MOTZ, SHEDD, and DUNCAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Katherine E. Evatt, Assistant Federal Public Defender, Columbia,
South Carolina, for Appellant. Reginald I. Lloyd, United States
Attorney, Tara L. McGregor, Assistant United States Attorney,
Columbia, South Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

           Benjamin Bolin pleaded guilty to possession of a firearm

after having been convicted of criminal domestic violence in

violation of 18 U.S.C.A. §§ 922(g)(1), 922(g)(9), 924(a), 924(e)

(West 2000 & Supp. 2007); and making a false statement to a federal

firearms dealer in violation of 18 U.S.C. §§ 922(a)(6), 922(g)(1),

924(a)(2)(2000).        Bolin     appeals,   arguing       his   sentence    was

improperly enhanced under the Armed Career Criminal Act (“ACCA”),

18 U.S.C.A. § 924(e) (West 2000 & Supp. 2007).               For the reasons

that follow, we affirm.

           In    the   Presentence      Report   (PSR)   prepared    prior    to

sentencing, the probation officer determined that Bolin qualified

as an armed career offender based on two prior felony convictions

for criminal domestic violence and one prior felony conviction for

failure   to    stop   for   a   blue   light.     Bolin    objected   to    the

enhancement, contending that his 1995 and 1996 domestic violence

convictions could not serve as predicate felonies.                Bolin argued

that because the felony convictions (third and fourth domestic

violence offenses) were predicated on misdemeanor domestic violence

convictions (first and second offenses) for which he was not

afforded the right to counsel, the 1995 and 1996 convictions could

not result in      criminal history points or armed career offender

status.    See Alabama v. Shelton, 535 U.S. 654, 662 (2002) (a

suspended or probated sentence that may result in the deprivation


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of liberty in the form of imprisonment may not be imposed unless

the defendant was accorded the right to counsel).           The district

court overruled the objection because Bolin was represented by

counsel on the felony charges, and it appeared that only fines were

imposed for the misdemeanor convictions, so Bolin did not have a

right to counsel.     See Scott v. Illinois, 440 U.S. 367, 373-74

(1979).   The court sentenced Bolin to 180 months, the mandatory

minimum sentence under the ACCA.

             Bolin again challenges on appeal the use of his two

criminal domestic violence felony convictions to designate him as

an armed career offender; however, his objection on appeal rests on

an entirely different basis than his objection below.            On appeal,

he cites Apprendi v. New Jersey, 530 U.S. 466 (2000), and argues

that the 1995 and 1996 felony convictions could not serve as

predicates   for   ACCA   enhancement   because   the   record    does   not

establish that the jury found the existence of the underlying

misdemeanor first and second offenses beyond a reasonable doubt.

To the extent that this issue is cognizable, because he raises it

for the first time on appeal, this court’s review is for plain

error.1   See United States v. White, 405 F.3d 208, 215 (4th Cir.),



     1
      While Bolin relies on Shepard v. United States, 544 U.S. 13,
25 (2005), for support, he appears to ask this court to do what is
not permitted under Shepard — that is, to resolve disputed facts
about a prior conviction that are not evident from the “conclusive
significance of a prior judicial record” in order to reassess his
criminal history.

                                 - 3 -
cert. denied, 126 S. Ct. 668 (2005).            To establish plain error,

Bolin must show that an error occurred, that it was plain, and that

it affected his substantial rights.2          Id.

           Bolin asserts that when he was convicted of the criminal

domestic violence felonies, the existence of the prior misdemeanors

was found by the judge at sentencing, under a preponderance of the

evidence standard, rather than by the jury.              However, it is not

clear that Bolin’s factual premise is correct.               According to the

PSR, the fact of Bolin’s previous domestic violence convictions was

alleged   in    the    felony   domestic    violence    indictments.        More

significantly, even assuming Bolin is correct, the fact that the

misdemeanor convictions were found by the judge at sentencing does

not undermine the validity of the felony convictions because the

fact of a prior conviction need not be submitted to a jury and

proved beyond a reasonable doubt.            Almendarez-Torres v. United

States, 523 U.S. 224, 233-36, 243-44 (1998); see also United States

v. Cheek, 415 F.3d 349, 351-54 (4th Cir.) (reaffirming continuing

validity of Almendarez-Torres after United States v. Booker, 543

U.S. 220 (2005)), cert. denied, 126 S. Ct. 640 (2005).

           Accordingly, we affirm Bolin’s convictions and sentence.

We   dispense   with    oral    argument   because     the   facts   and   legal




      2
      Although Bolin asserts that the standard of review is de
novo, because the district court did not err under either standard,
the standard of review is not determinative.

                                    - 4 -
contentions are adequately presented in the materials before the

court and argument would not aid the decisional process.



                                                           AFFIRMED




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