                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 05-2547
                                    ___________

United States of America,                *
                                         *
             Appellee,                   *
                                         * Appeal from the United States
      v.                                 * District Court for the
                                         * Eastern District of Arkansas.
Michael Kuntz,                           *
                                         * [UNPUBLISHED]
             Appellant.                  *
                                    ___________

                              Submitted: May 25, 2006
                                 Filed: June 9, 2006
                                  ___________

Before MELLOY, FAGG, and BENTON, Circuit Judges.
                           ___________

PER CURIAM.

       Michael Kuntz appeals the 180-month sentence the district court1 imposed after
he pleaded guilty to being a felon in possession of a firearm, in violation of 18 U.S.C.
§ 922(g)(1). Kuntz argues (1) that the district court erred in sentencing him as an
armed career criminal because his prior burglaries were not separate instances, but
amounted to a single event or spree; (2) that his sentence, based on prior convictions,
violates the Sixth Amendment because United States v. Booker, 543 U.S. 220 (2005),
and Shepard v. United States, 544 U.S. 13 (2005), challenge the continued viability

      1
       The Honorable Susan Webber Wright, United States District Judge for the
Eastern District of Arkansas.
of Almendarez-Torres v. United States, 523 U.S. 224, 243-44 (1998) (prior criminal
history is sentencing factor for court to decide, not fact issue for jury to decide); and
(3) that due process and ex post facto principles prevent the application of Booker’s
remedy of advisory Guidelines to his pre-Booker criminal conduct.

       We conclude that the district court did not err in sentencing Kuntz as an armed
career criminal, because Kuntz’s four prior burglaries, over a period of five days, were
discrete criminal episodes. See United States v. Gray, 85 F.3d 380, 381 (8th Cir.)
(discrete criminal episodes, rather than dates of conviction, trigger sentence
enhancement under the Armed Career Criminal Act (ACCA); burglaries committed
only twenty-five minutes apart were separate offenses under ACCA), cert. denied, 519
U.S. 907 (1996).

       Kuntz’s argument under Shepard--that his sentence should not have been
increased by the district court based on prior convictions--was recently rejected in
United States v. Johnson, 408 F.3d 535, 540 (8th Cir. 2005) (“Shepard did not alter
the rule that a court may consider prior criminal history as a sentencing factor.”). We
further conclude that because Kuntz was sentenced to the statutory minimum, there
is no merit to his argument that the district court’s application of Booker’s remedy of
advisory Guidelines to his pre-Booker criminal conduct was an ex post facto or due
process violation. See United States v. Kelly, 436 F.3d 992, 995 (8th Cir. 2006) (ex
post facto and due process clauses require that defendant have fair warning of
punishment for crimes which he committed; finding no ex post facto or due process
violation where district court’s variance above Guidelines range was below statutory
maximum and sentence was not unexpected or indefensible by reference to expressed
law prior to conduct in issue). We note that Booker was not implicated by Kuntz’s
sentence because the sentence was based on the statutory mandatory minimum. See
United States v. Thomas, 398 F.3d 1058, 1063-64 (8th Cir. 2005) (use of prior felony
conviction to impose statutory minimum penalties does not implicate Booker); United
States v. Vieth, 397 F.3d 615, 620 (8th Cir.) (no Booker issue arises where sentence

                                          -2-
was based on statutory mandatory minimum rather than on application of Guidelines),
cert. denied, 125 S. Ct. 2560 (2005).

      Accordingly, we affirm.
                     ______________________________




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