                              UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                              No. 04-6072



UNITED STATES OF AMERICA,

                                                Plaintiff - Appellee,

          versus


CHRISTOPHER SHANE COLIN,

                                               Defendant - Appellant.



Appeal from the United States District Court for the Southern
District of West Virginia, at Beckley.     Charles H. Haden II,
District Judge. (CR-01-209-5; CA-02-1223-5)


Submitted:   August 1, 2005                 Decided:   August 31, 2005


Before MOTZ, KING, and GREGORY, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Tracy Weese, Shepherdstown, West Virginia, for Appellant. Kasey
Warner, United States Attorney, John L. File, Assistant United
States Attorney, Charleston, West Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

              Christopher Shane Colin appeals from his conviction and

sentence following a guilty plea to a single count of possession of

a   firearm     as   a   convicted     felon,       in   violation     of   18    U.S.C.

§§ 922(g), 924 (2000).             Finding no plain error in the district

court’s    imposition        of   Colin’s     sentence        under   the   sentencing

guidelines, we affirm.

              Colin submitted an initial brief pursuant to Anders v.

California, 386 U.S. 738 (1967).                   Following the issuance of the

Supreme Court’s opinion in United States v. Booker, 125 S. Ct. 738

(2005), Colin filed supplemental briefs in which he argued the

district      court’s    imposition      of        sentence    violated     his   Sixth

Amendment right to trial by jury.

              In Booker, the Supreme Court held that the mandatory

manner in which the federal sentencing guidelines required courts

to impose sentencing enhancements based on facts found by the court

by a preponderance of the evidence violated the Sixth Amendment.

See Booker, 125 S. Ct. at 746, 750 (Stevens, J., opinion of the

Court).       The    Court    remedied       the    constitutional      violation     by

severing two statutory provisions, 18 U.S.C.A. § 3553(b)(1) (West

Supp. 2005) (requiring sentencing courts to impose a sentence

within the applicable guideline range), and 18 U.S.C.A. § 3742(e)

(West 2000 & Supp. 2005) (setting forth appellate standards of

review    for    guideline        issues),    thereby     making      the   guidelines


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advisory.    United States v. Hughes, 401 F.3d 540, 546 (4th Cir.

2005) (citing Booker, 125 S. Ct. at 756-67 (Breyer, J., opinion of

the Court)).

            After   Booker,    courts   must   calculate     the   appropriate

guideline range, consider the range in conjunction with other

relevant factors under the guidelines and 18 U.S.C.A. § 3553(a)

(West 2000 & Supp. 2005), and impose a sentence.             If the district

court imposes a sentence outside the guideline range, it must state

its reasons for doing so.       Hughes, 401 F.3d at 546.       This remedial

scheme   applies    to   any   sentence    imposed   under    the   mandatory

guidelines, regardless of whether or not the sentence violates the

Sixth Amendment.      Id. at 547 (citing Booker, 125 S. Ct. at 769

(Breyer, J., opinion of the Court)).

            Because Colin did not object to the district court’s

imposition of sentence, he must demonstrate that any error in the

court’s application of the guidelines constituted plain error. Id.

at 547-48.     To demonstrate plain error, he must establish that

error occurred, that it was plain, and that it affected his

substantial rights.      Id.   Applying this standard, we conclude that

the district court did not commit reversible error either by

establishing a base offense level of twenty-four on account of

Colin’s two prior felony convictions or by enhancing that offense

level by two points on the ground that the offense involved a

stolen firearm.


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          First, the district court’s consideration of Colin’s

prior felony convictions in the calculation of his base offense

level does not run afoul of Booker.     See Booker, 125 S. Ct. at 756

(reaffirming right of district court to consider prior convictions

in the context of application of guidelines); United States v.

Cheek, 415 F.3d 349 (4th Cir. 2005) (holding that, under the Sixth

Amendment, the fact of a prior conviction need not be submitted to

the jury or admitted by the defendant for it to serve as a

permissible basis for a sentencing enhancement).           Nor did the

district court commit reversible error by enhancing Colin’s offense

level by two points on account of its finding that the offense

involved a stolen firearm.      While Booker and Hughes dictate a

conclusion   that   mandatory   application    of   this    sentencing

enhancement by the district court was erroneous1 and that the error

was plain, we decline to recognize the error because it did not

infringe Colin’s Sixth Amendment rights.       As noted, Colin’s two

prior convictions required the district court to set a base offense

level of twenty-four.     Combined with Colin’s criminal history

category of V, this yielded a sentencing range of 92 to 115 months’

imprisonment.   Colin’s sentence of 105 months fell squarely within




     1
      Just as we noted in Hughes, 401 F.3d at 545 n.4, “[w]e of
course offer no criticism of the district judge, who followed the
law and procedure in effect at the time” of Colin’s sentencing.

                                - 4 -
this range.2      Accordingly, Colin cannot show that the application

of the judicially determined enhancement for an offense that

involved a stolen firearm violated his rights under the Sixth

Amendment.

             We     likewise   conclude      that        the    district       court’s

application of a mandatory guidelines scheme does not amount to

plain error.      Our review of the sentencing transcript discloses no

evidence that the district court felt constrained by the guidelines

range or that it wished to sentence Colin below that range.                        See

United   States      v.   White,   405   F.3d     208,    223    (4th    Cir.    2005)

(declining     to    presume   prejudice     in    the     absence      of    judicial

statements relating to alternative sentence).                   Accordingly, Colin

cannot   demonstrate       plain   error   on     the    basis    of    a    mandatory

application of the guidelines scheme.

             Finding no meritorious issues upon our review of the

record, we affirm the judgment of the district court.                         We deny

counsel’s motion to withdraw.            This court requires that counsel

inform her client, in writing, of his right to petition the Supreme

Court of the United States for further review.                       If the client

requests that a petition be filed, but counsel believes that such


     2
      As in United States v. Evans, 416 F.3d 298 (4th Cir. 2005),
for purposes of determining whether Colin’s Sixth Amendment rights
were infringed by the district court’s error, we compare the
sentence imposed on Colin against the guideline range that was
properly determined before that range was adjusted to account for
the three-point reduction in offense level Colin received for
acceptance of responsibility.

                                     - 5 -
a petition would be frivolous, then counsel may again move in this

court for leave to withdraw from representation.   Counsel’s motion

must state that a copy thereof was served on the client.        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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