                             UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                             No. 05-4018



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

          versus


ALVIS REZA JONES,

                                              Defendant - Appellant.


Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. N. Carlton Tilley, Jr.,
Chief District Judge. (CR-04-245)


Submitted:   October 26, 2005               Decided:   June 30, 2006


Before WILLIAMS, KING, and DUNCAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Louis C. Allen, III, Federal Public Defender, William C. Ingram,
First Assistant Federal Public Defender, Greensboro, North
Carolina, for Appellant.     Anna Mills Wagoner, United States
Attorney, Lisa B. Boggs, 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Unpublished opinions are not binding precedent in this circuit.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:

                 Alvis Reza Jones appealed his 127-month sentence, which

was imposed following his guilty plea to possession with intent to

distribute         10.3    grams    of     crack    in    violation   of    21   U.S.C.

§ 841(a)(1), (b)(1)(B).             The sentencing court stated that it would

impose the same 127-month sentence in its “unfettered discretion.”

Jones asserts on appeal that his sentence was improperly increased

based upon a prior conviction that was not contained in the

indictment to which he pled guilty and that his sentence was

improperly increased based upon drug quantities not alleged in the

indictment or found by a jury.               We affirm.1

                 Jones asserts that the sentencing court violated the

Sixth Amendment under Blakely v. Washington, 542 U.S. 296 (2004),

and its progeny when it increased his sentencing range from five to

forty       years    to     ten    years    to     life   pursuant    to    21   U.S.C.

§ 841(b)(1)(B) based upon a prior “felony drug offense” not alleged

in his indictment or admitted by him.                      The Government filed an

Information of Prior Conviction pursuant to 21 U.S.C. § 851 stating

Jones was convicted of cocaine trafficking in North Carolina in May

2000       and   that     the   Government       therefore   sought   the    increased

penalties of § 841(b)(1)(B).               Jones acknowledged the conviction at




       1
      This appeal was placed in abeyance for United States v.
Shatley, 448 F.3d 264 (4th Cir. 2006).

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his sentencing hearing.       Because Jones raised this issue in the

sentencing court, review is de novo.

            In Shepard v. United States, 544 U.S. 13, 19-21 (2005),

the Supreme Court held that Sixth Amendment protections apply to

disputed facts about a prior conviction that are not evident from

“the conclusive significance of a prior judicial record.”         Unlike

the defendant in Shepard, Jones did not contest any facts about the

prior conviction the court used to enhance his sentence.         While he

alleges that the court implicitly made factual findings regarding

the nature of his prior conviction to conclude it was a “felony

drug offense,” he did not contest the court’s factual findings

below or in his appellate brief.           Thus, his is a purely legal

argument that, in all cases, a court must make factual findings in

determining    the   nature   of   prior   convictions   for   sentencing

purposes.    However, this court has rejected this argument based on

Apprendi v. New Jersey, 530 U.S. 466 (2000), and other similar

precedent.     See United States v. Cheek, 415 F.3d 349, 354 (4th

Cir.), cert. denied, 126 S. Ct. 640 (2005).        Thus, when the facts

about the prior convictions were undisputed, there is no Sixth

Amendment error in utilizing the prior convictions to enhance a

sentence.     See id. at 352-53 (finding no Sixth Amendment error in

armed career criminal context); see also United States v. Collins,

412 F.3d 515, 521-23 (4th Cir. 2005) (finding that, when nature of

prior conviction is undisputed, the court makes no factual findings


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in determining that conviction was crime of violence or controlled

substance offense).       For these reasons, this claim is meritless.

              Jones next asserts he should be resentenced under Blakely

because the district court imposed a sentence that was based on

drug quantities that were neither alleged in his indictment nor

admitted by him.       Because the 120-month mandatory minimum sentence

was appropriate, this claim implicates the additional seven months

in   prison    Jones   received   above       the    120-month   minimum.   The

Government acknowledges that the district court erred in increasing

Jones’s    sentence     based   upon    its    own    factual    finding.   The

Government continues, however, that such error was harmless because

the sentencing court also stated that it would impose the same 127-

month sentence in its “unfettered discretion.” (Sealed JA II, 90).

Because this issue was raised at sentencing, this court’s review is

de novo.

              We agree with the Government that any Sixth Amendment

error is harmless.        The district court made it clear it would

impose the same 127-month sentence if the Sentencing Guidelines

were advisory.      The 127-month sentence falls within the statutory

range of 120 months to life under § 841(b)(1)(B).                Therefore, the

error is harmless under Fed. R. Crim. P. 52(a) because it did not

affect Jones’s substantial rights.             See United States v. Shatley,

448 F.3d 264, 265-67 (4th Cir. 2006).           For these reasons, we affirm

Jones’s sentence.        We dispense with oral argument because the


                                       - 4 -
factual and legal issues are adequately presented in the materials

before the court and argument would not aid the decisional process.



                                                          AFFIRMED




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