                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 06-4159



UNITED STATES OF AMERICA,

                                                 Plaintiff - Appellee,

           versus


JOSEPH K. NEWBOLD,

                                                Defendant - Appellant.



Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. William L. Osteen, District
Judge. (1:05-cr-00262-WLO)


Argued:   November 29, 2006                 Decided:   January 31, 2007


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


Affirmed by unpublished per curiam opinion.


ARGUED: Elizabeth Brooks Scherer, SMITH MOORE, L.L.P., Raleigh,
North Carolina, for Appellant. Randall Stuart Galyon, Assistant
United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Greensboro, North Carolina, for Appellee.     ON BRIEF: James D.
Cowan, Jr., SMITH MOORE, L.L.P., Greensboro, North Carolina, for
Appellant. Anna Mills Wagoner, United States Attorney, Greensboro,
North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

     Joseph Kenneth Newbold pleaded guilty to distributing 5.3

grams of a substance containing 5-Methoxy-alpha-methyltryptamine

(5-MeO-AMT), in violation of 21 U.S.C.A. §§ 841(a)(1), (b)(1)(C)

(West 1999 & Supp. 2006), money laundering, in violation of 18

U.S.C.A. §§ 2 (West 2000 & Supp. 2006) and 1956(a)(3)(B) (West 2000

& Supp. 2006), and being a felon in possession of a firearm, in

violation of 18 U.S.C.A. §§ 922(g)(1) (West 2000 & Supp. 2006) and

924(a)(2) (West 2000 & Supp. 2006).           The district court sentenced

Newbold to a total term of 225 months’ imprisonment.              On appeal,

Newbold argues that the district court erred in sentencing him as

a career offender and an armed career criminal and that his

sentence was imposed in violation of his confrontation and jury-

trial rights under the Sixth Amendment.               Finding no error, we

affirm.



                                     I.

     The North Carolina State Bureau of Investigation (SBI), the

Randolph County Sheriff’s Office in Asheboro, North Carolina, and

the Eden, North Carolina police department began investigating

Newbold   in   July   2004   on   suspicion    that   he   was   distributing

controlled substances. On July 28, 2004, two undercover SBI agents

and a confidential informant met Newbold at a convenience store in

Randleman, North Carolina; at the meeting, Newbold sold them 468.1

grams of marijuana and 50 gel capsules containing 5.3 grams of 5-
                                2
MeO-AMT. Over the next few months, the undercover agents completed

a number of other controlled drug transactions with Newbold.

During one of these transactions, Newbold mentioned to the SBI

agents that he could launder drug money for them; the agents agreed

to go along with the money-laundering scheme and brought in an

undercover agent from the Internal Revenue Service to pose as the

money handler for the drug organization.   Newbold created a shell

corporation, secured a fake W-2 and birth certificate for one of

the undercover agents, and aided in establishing a post office box

and corporate checking account for the corporation.        With the

pieces of his laundering scheme in place, Newbold began laundering

various cash amounts for the undercover agents.

     On July 13, 2006, federal agents executed search and arrest

warrants at Newbold’s home.   The agents recovered eight firearms,

including two assault rifles, and a small amount of marijuana.

During an interview on July 13, 2006, Newbold admitted, after

waiving his Miranda rights, that he laundered money provided by the

undercover agents, carried a firearm when distributing drugs to the

agents, and carried a .44 caliber revolver when he received $40,000

in cash from the agents on February 2, 2005.   Newbold also admitted

that he kept a .357 Magnum near the marijuana in his house to fend

off would-be robbers.

     On July 25, 2005, a grand jury sitting in the Middle District

of North Carolina indicted Newbold for the distribution of 5.3

grams of 5-MeO-AMT (Count One) and 468.1 grams of marijuana (Count
                                 3
Two); money laundering in the sums of $9,900 (Count Three), $100

(Count Four), $10,300 (Count Five), and $41,200 (Count Six); and

for being a felon in possession of a firearm (Count Seven).             On

September 8, 2005, Newbold executed a written plea agreement with

the Government in which he pleaded guilty to Counts One, Three, and

Seven in exchange for the Government’s dismissal of the remaining

counts of the indictment.        As part of the plea agreement, Newbold

admitted to distribution of 5.3 grams of 5-MeO-AMT.          The district

court accepted Newbold’s guilty plea the same day.

     The    probation   officer    filed   a   presentence   report   (PSR)

calculating Newbold’s offense level at 34 under the “armed career

criminal” provision of the U.S. Sentencing Guidelines Manual, §

4B1.4(b)(3)(A) (2004).      The PSR also noted that Newbold qualified

as a career offender under U.S.S.G. § 4B1.1, but applied the armed-

career-criminal enhancement instead because it resulted in a higher

offense    level.   After    a   three-level    downward   adjustment   for

acceptance of responsibility, the PSR recommended a total offense

level of 31.    Newbold’s seven criminal history points would have

normally resulted in a criminal history category of IV, but because

the probation officer determined that Newbold qualified as a career

offender, his criminal history category was automatically increased

to VI pursuant to U.S.S.G. § 4B1.1.        The resulting sentence range

was 188 to 235 months’ imprisonment.




                                      4
     Newbold filed written objections to the PSR, including broad

objections    to       the    PSR’s    reliance   on    facts      supporting   upward

adjustments that were neither admitted by Newbold nor proved to a

jury beyond a reasonable doubt. Newbold also objected to the PSR’s

application       of    the    career-offender         and    armed-career-criminal

enhancements.

     At Newbold’s sentencing hearing on January 10, 2006, the

district court adopted the PSR’s recommendations over Newbold’s

objections,    including         his    objection      at    the   hearing   that   the

district court violated his rights under the Confrontation Clause

by relying on testimonial hearsay in the PSR, and sentenced Newbold

to 225 months’ imprisonment on each of Counts One, Three, and

Seven, to run concurrently, followed by three years of supervised

release on Counts One and Three, and five years of supervised

release on Count Seven.               (J.A. at 85.)         Newbold timely noted an

appeal.    We have jurisdiction pursuant to 28 U.S.C.A. § 1291 (West

2006) and 18 U.S.C.A. § 3742(a) (West 2000).



                                           II.

     Newbold argues on appeal that (1) the district court erred in

applying    the    §     4B1.1    career-offender           enhancement   because    it

improperly found that two of his previous drug offenses were

separate offenses for sentencing purposes; (2) the district court

erred in sentencing him as an armed career criminal because his


                                            5
previous felony drug convictions do not qualify as predicate

offenses under 18 U.S.C.A. § 924(e); (3) the district court’s

reliance on testimonial hearsay at sentencing violated his rights

under the Confrontation Clause; (4) the district court committed

Sixth-Amendment error in applying the career-offender and armed-

career-criminal enhancements because Newbold’s previous convictions

were not charged in the indictment and were neither admitted by him

nor proved to the jury; and (5) his sentence also violates the

Sixth Amendment because it is based on other judicially-found facts

-- including facts about drug quantity and laundered cash amounts

-- that were not submitted to the jury.         We address each of these

arguments in turn.



                                  A.

     Newbold   first   argues   that   the    district   court   erred    in

sentencing him as a career offender under U.S.S.G. § 4B1.1.              “In

assessing a challenge to a sentencing court’s application of the

Guidelines, we review the court’s factual findings for clear error

and its legal conclusions de novo.”          United States v. Allen, 446

F.3d 522, 527 (4th Cir. 2006).

     Guideline § 4B1.1(a) provides:

     A defendant is a career offender if (1) the defendant was
     at least eighteen years old at the time of the instant
     offense of conviction; (2) the instant offense of
     conviction is a felony that is either a crime of violence
     or a controlled substance offense; and (3) the defendant


                                   6
     has at least two prior felony convictions of either a
     crime of violence or a controlled substance offense.

U.S.S.G. § 4B1.1.

     The district court applied the career-offender enhancement

because it found that Newbold’s 1984 state and federal felony

convictions for drug distribution were two separate offenses for

sentencing purposes.     Newbold does not deny that the § 4B1.1

enhancement would otherwise apply to him, but he argues that these

two previous drug offenses are “related” under the meaning of

Guideline § 4A1.21 and therefore should have been treated as one

offense for sentencing purposes.        He points out that the offenses

were close in both proximity and time, shared a similar modus

operandi, and were part of the same drug conspiracy. Additionally,

Newbold notes that the two 1984 convictions were prosecuted and

sentenced separately only because two different sovereigns -- the

federal   government   and   the   state   of   North   Carolina   --   took

jurisdiction over the offenses.

     Based on the commentary to U.S.S.G. § 4A1.2, however, “[p]rior

sentences are not considered related if they were for offenses that

were separated by an intervening arrest.”          U.S.S.G. § 4A1.2 cmt.

n.3. Newbold concedes that an intervening arrest separated his two

1984 drug convictions.       Accordingly, the district judge properly


     1
      Application Note 3 of U.S.S.G. § 4B1.1 instructs a sentencing
court to consult U.S.S.G. § 4A1.2 to determine the number of
qualifying prior convictions for a defendant.      U.S. Sentencing
Guidelines Manual § 4B1.1 cmt. n.3 (2004).

                                    7
applied the career-offender enhancement because the two previous

convictions are not related for sentencing purposes.              See United

States v. Collins, 412 F.3d 515, 520 (4th Cir. 2005)(holding that

two previous convictions were not “related” for sentencing purposes

when they were separated by an intervening arrest).



                                       B.

      Newbold also argues that the district court erred in applying

U.S.S.G. § 4B1.4, the armed career-criminal enhancement, to his

sentence because the three previous offenses relied on by the

district court in applying the enhancement do not qualify as

predicate offenses under the Armed Career Criminal Act (ACCA), 18

U.S.C.A. § 924(e).      “Whether [a prior] conviction qualifies as a

predicate conviction under section 924(e) is a question of statutory

interpretation [that we] review[] de novo.”               United States v.

Brandon, 247 F.3d 186, 188 (4th Cir. 2001).

      The ACCA imposes a mandatory minimum fifteen year sentence for

any   defendant   who   violates   §    922(g)    and   has   three   previous

convictions for “violent felon[ies]” or “serious drug offense[s],”

or both.    18 U.S.C.A. § 924(e)(1).             “Serious drug offense” is

defined in pertinent part as “an offense under State law, involving

manufacturing,    distributing,        or   possessing    with    intent    to

manufacture or distribute, a controlled substance . . . for which

a maximum term of imprisonment of ten years or more is prescribed

by law.”    18 U.S.C.A. § 924(e)(2)(A)(ii).              The district court
                                8
sentenced Newbold as an armed career criminal because it found that

three of his previous drug convictions -- namely, his 1980, 1981,

and 1984 North Carolina felony convictions for possession with

intent to sell and deliver controlled substances -- were “serious

drug offenses” under the statute.           Although Newbold makes several

arguments as to why these three prior convictions are not “serious

drug offenses” for purposes of the ACCA, none of these arguments

persuade us that the district court erred in sentencing him as an

armed career criminal.

                                     1.

     First,   Newbold     contends   that    because    the   certificate   of

restoration of citizenship that North Carolina issued him upon his

discharge from federal supervision did not expressly provide that

he could not possess a firearm, his three prior North Carolina

convictions cannot serve as predicate offenses under the ACCA.

Newbold bases his argument on 18 U.S.C.A. § 921(a)(20), which he

claims   prevents   any    conviction     for   which    a    certificate   of

restoration of citizenship has been provided from serving as a

predicate crime under § 924(e)(2) when that certificate does not

expressly provide that the defendant cannot possess a firearm.

Newbold received a certificate of restoration of citizenship from

North Carolina on August 3, 2000, following his discharge from

federal supervision in 1999.     It is undisputed that the certificate

does not expressly provide that Newbold cannot possess a firearm.


                                      9
As such, Newbold argues that his previous state drug convictions

cannot serve as predicate crimes under the ACCA.2

     As an initial matter, we must address the Government’s argument

that the “restoration-of-rights” exception under § 921(a)(20) does

not apply to “serious drug offenses.”      Unlike the definition of

“serious drug offense,” the definition of “violent felony” includes

the phrase “crime punishable by imprisonment for a term exceeding

one year.”   18 U.S.C.A. § 924(e)(2)(B).   Section 921(a)(20) in turn

states that what constitutes a “crime punishable by imprisonment for

a term exceeding one year” is

     determined in accordance with the law of the jurisdiction
     in which the proceedings were held. Any conviction . .
     . for which a person has been pardoned or had civil
     rights restored shall not be considered a conviction for
     purposes of [the armed career enhancement], unless such
     pardon, expungement, or restoration of civil rights



     2
      We assume for the sake of argument that the June 28, 1999
certificate was intended to cover Newbold’s previous state drug
convictions in North Carolina.       We note, however, that the
certificate’s language suggests that this may not have been the
case. The only certificate of restoration of citizenship provided
by North Carolina to Newbold that was included in the record
provides that Newbold “was convicted of a crime against the United
States or another state,” not against the state of North Carolina.
(J.A. at 146. (emphasis added)). This phrasing tracks the language
of N.C. Gen. Stat. § 13-2 (2005), which describes the process for
issuing and filing a certificate of restoration of citizenship and
clearly distinguishes between cases involving persons convicted of
crimes under North Carolina law, N.C. Gen. Stat. § 13-2(a), and
cases involving persons “convicted of a crime against another state
or the United States,” N.C. Gen. Stat. § 13-2(b). On the other
hand, we acknowledge that it would have made little practical sense
for North Carolina to issue two separate certificates to Newbold;
either one would have been enough evidence that his rights under
North Carolina law had been seemingly restored.

                                 10
     expressly provides that the person may                   not   ship,
     transport, possess, or receive firearms.

18 U.S.C.A. § 921(a)(20).

The Government contends that because the definition of “serious drug

offense”   does     not   reference   the   phrase   “crime    punishable     by

imprisonment for a term exceeding one year,” we do not need to

consult    §     921(a)(20)’s   “restoration-of-rights”         provision     in

determining whether a conviction is a “serious drug offense” under

the statute. This interpretation of the statutory scheme is without

merit.     While it is true that the definition of “serious drug

offense” in § 924(e)(2)(A) does not use the phrase “crime punishable

by imprisonment for a term exceeding one year,” convictions that

would otherwise qualify as “serious drug offenses” by definition

come within the meaning of that phrase.         “Serious drug offense” is

defined, inter alia, as “an offense under State law . . . for which

a maximum term of imprisonment of ten years or more is prescribed

by law.”       18 U.S.C.A. § 924(e)(2)(A).      Additionally, convictions

that would otherwise qualify as “serious drug offenses” are not

among the crimes that are excluded by § 921(a)(20) from the

definition of “crime punishable by imprisonment for a term exceeding

one year.”      See 18 U.S.C.A. § 921(a)(20)(A)-(B) (excluding various

crimes). Thus, any conviction that would come within the definition

of “serious drug offense” would also necessarily qualify as a “crime

punishable by imprisonment for a term exceeding one year.”                  There

is therefore no interpretive reason to determine whether a crime is

                                      11
a “serious drug offense” without resort to the “restoration-of-

rights” provision in § 921(a)(20).

     Having   concluded    that     §   921(a)(20)    is    pertinent    to   the

determination of whether Newbold’s previous drug convictions were

serious drug offenses, we now turn to Newbold’s argument.               We first

note that, aside from the issues surrounding the certificate, see

supra note 2, there is no question that Newbold’s right to possess

a firearm had not been restored by the time North Carolina revised

its Felony Firearms Act in 1995.              Under North Carolina’s Felony

Firearms   Act   in   effect   at       the   time   of    Newbold’s    previous

convictions, felons could have their firearm rights restored once

five years had elapsed from the time of their release from prison.

N.C. Gen. Stat. § 14-415.1(a) (1993), amended by N.C. Gen. Stat. §

14-415.1(a) (2005).       In 1995, North Carolina revised its Felony

Firearms Act,3 replacing the five-year firearm disability with a

complete ban on felons possessing most types of firearms. N.C. Gen.

Stat. §    14-415.1(a) (2005).          Prior to December 1, 1995, the

effective date of the revised act, Newbold was never out of state

or federal custody long enough for his firearm rights to have been

restored under the previous version of the Felony Firearms Act.



     3
      In a related argument, Newbold argues that the revised Felony
Firearms Act, N.C. Gen. Stat. § 14-415.1(a) (2005), is ex post
facto as applied to him. We have rejected this argument in United
States v. Farrow, 364 F.3d 551, 555 (4th Cir. 2004) (holding that
retroactive application of North Carolina’s Felony Firearms Act’s
complete ban on felon firearm possession does not violate the Ex
Post Facto Clause).
                                 12
After December 1, 1995, Newbold was completely banned under North

Carolina law from possessing a firearm irrespective of the time he

had been out of prison.

     As noted above, Newbold, relying on the plain language of §

921(a)(20), contends that his previous convictions cannot serve as

predicate crimes under the ACCA as a matter of law because his

certificate of restoration of rights does not “expressly provide”

that he cannot possess a firearm.    18 U.S.C.A. § 921(a)(20).   While

his argument has some force, we have determined that the “better

reasoned approach” is to “look to the whole of state law,” including

state law concerning a convicted felon’s firearm privileges. United

States v. McLean, 904 F.2d 216, 218 (4th Cir. 1990). Looking to the

whole of North Carolina law, at the time Newbold received his

certificate on August 3, 2000, North Carolina’s Felony Firearms Act

completely and permanently banned Newbold from possessing firearms.

Under our precedent, then, the Firearms Act “expressly provides” the

circumstances under which a “‘person may not ship, transport,

possess, or receive firearms,’ as required by . . . § 921(a)(20).”

Id. at 219; see also United States v. King, 119 F.3d 290, 293 (4th

Cir. 1997)(“In determining whether a defendant’s civil rights have

been restored, we ‘look to the whole of state law . . . .’”).      We

therefore reject Newbold’s argument.

                                2.

     Newbold next argues that his previous state drug convictions

are not predicate offenses under the ACCA because while they
                             13
previously carried “term[s] of imprisonment of ten years or more”

under North Carolina law, they do not currently carry terms of

imprisonment of ten years or more because North Carolina decreased

the penalties for those crimes when it revised its sentencing scheme

in 1994.4   He points out that the statutory definition of “serious

drug offense” uses the phrase “is prescribed by law” instead of “was

prescribed by law” to support his argument that the determination

of whether a crime carries a term of imprisonment of ten years or

more must be made at the time of federal sentencing rather than at

the time of the previous conviction.

     In further support of his view, Newbold points us to the Sixth

Circuit’s decision in United States v. Morton, 17 F.3d 911 (6th Cir.

1994).   In Morton, the district court had concluded that it should

determine whether the defendant’s previous convictions were serious

drug offenses at the time of the convictions and not at the time of

sentencing.   On appeal, the Morton court held that principles of

lenity   required   the   district   court   to   determine   whether   the

defendant’s previous convictions were serious drug offenses at the

time of sentencing. Id. at 916. Because Tennessee did not consider

the defendant’s previous trafficking offenses serious enough to

impose at least a ten-year sentence at the time of sentencing, the



     4
      The Government contends that we should review this particular
argument for plain error, but Newbold clearly made this argument in
his written objections to his PSR.      Accordingly, we review his
claim de novo. United States v. Brandon, 247 F.3d 186, 188 (4th
Cir. 2001).
                                 14
Morton court vacated the district court’s sentence and remanded for

resentencing.     Id.

     The Government counters with the Fifth Circuit’s decision in

United   States    v.   Hinojosa,     349   F.3d    200   (5th   Cir.    2003).

Distinguishing Morton, the Hinojosa court held the defendant’s three

drug convictions that predated the effective date of the revisions

to Texas’s criminal code qualified as “serious drug offenses” under

the ACCA.    Id. at 205.     The court noted that, unlike the Tennessee

sentencing   scheme     at   issue   in   Morton,   Texas’s    revised   scheme

“specifically provides that the revised sentences do not apply to

crimes committed before the effective date of the revisions.”              Id.

The court concluded that “even under Morton, [the defendant’s]

previous convictions would be for ‘serious drug offenses’ because

if he were sentenced by the state . . . today, he would still be

subject to a maximum term of at least ten years.”              Id.

     When North Carolina revised its sentencing scheme in 1994, it

specifically provided that the revised sentences do not apply to

crimes committed before the effective date of the revisions.              N.C.

Gen. Stat. § 15A-1340.10 (2005); State v. Branch, 518 S.E.2d 213,

215 (N.C. Ct. App. 1999)(explaining that the defendant's “offenses

that were committed prior to 1 October 1994, the effective date of

the Structured Sentencing Act, fall under the sentencing guidelines

of the Fair Sentencing Act as a matter of law”).              In effect, then,

North Carolina has two sentencing schemes: one for crimes committed

before October 1, 1994 and one for crimes committed after October 1,
                                 15
1994. In this regard, North Carolina’s revised sentencing scheme is

similar to the Texas sentencing scheme at issue in Hinojosa, and we

find the Fifth Circuit’s reasoning in that case persuasive.        If

Newbold was tried and convicted today for the three drug offenses at

issue, he would still be subject to the higher sentences imposed by

the pre-1994 sentencing statutes.      Thus, Newbold’s three previous

felony drug convictions were punishable by a term of imprisonment of

at least ten years or more at the time he committed the crimes and

at the time the district court sentenced him in this case.         We

therefore reject Newbold’s argument.

                                  3.

     Newbold argues that even if the determination about whether a

previous offense is a “serious drug offense” is made at the time of

federal sentencing, his previous drug convictions still do not count

as predicate crimes under § 924(e) because, in light of the Supreme

Court’s decision in Blakely v. Washington, 542 U.S. 296 (2004), his

crimes do not carry a “statutory maximum” sentence of at least ten

years.   Blakely held that the “statutory maximum” penalty for an

offense is “the maximum sentence a judge may impose solely on the

basis of the facts reflected in the jury verdict or admitted by the

defendant.” Id. at 303. Under North Carolina’s now-superseded Fair

Sentencing Act, which was in effect at the time of Newbold’s three

previous drug convictions, Newbold’s previous drug convictions were

Class H felonies that each carried a presumptive penalty of no more

than six years.   See N.C. Gen. Stat. § 15A-1340.4(f)(6), repealed by
                                  16
Structured    Sentencing   Act.    Under     the   Fair    Sentencing    Act,   a

sentencing court was required to impose a presumptive sentence

unless it found “aggravating factors,” by a preponderance of the

evidence, that warranted an enhanced sentence above the presumptive

range.   Id. § 15A-1340.4.     If a court found aggravating factors, it

could impose a sentence up to the maximum sentence permitted by

statute, which was ten years for Class H felonies.              Id.

     Newbold maintains that because the specific facts of his

previous convictions did not provide any basis for imposition of a

sentence     exceeding   the   presumptive     range      -–   i.e.,    that    no

“aggravated” facts were admitted by him or proved to a jury –- under

Blakely5 his prior convictions were not for offenses punishable by


     5
      In his brief, Newbold initially relied on the North Carolina
Supreme Court’s decision in State v. Allen, 615 S.E.2d 256, 260-61
(N.C. 2005), opinion withdrawn, 635 S.E.2d 899 (N.C. 2006), in
support of this Blakely-based argument.       In Allen, the North
Carolina Supreme Court, construing North Carolina’s current
Structured Sentencing Act, stated that “other than the fact of a
prior conviction, any fact that increases the penalty for a crime
beyond the prescribed presumptive range must be submitted to the
jury and proved beyond a reasonable doubt.” Id. at 265. After
briefing, but before oral argument, the state Supreme Court
withdrew its opinion in Allen in response to the U.S. Supreme
Court’s decision in Washington v. Recuenco, 126 S. Ct. 2546 (2006).
Recuenco held that failure to submit a sentencing factor to the
jury is not a structural error that always invalidates a conviction
and thus can be evaluated under the harmless-error standard. Id.
at 2551.   Allen was withdrawn solely to reconsider whether the
Blakely error in that case was harmless.       State v. Allen, 635
S.E.2d 899, 899 (N.C. 2006).
     While Allen has been withdrawn, Newbold contends in a letter
submitted pursuant to Fed. R. App. P. 28(j) that the decision’s
constitutional analysis remains intact, excepting the harmless-
error issue, and that the withdrawal of the decision has no bearing
on the issue on appeal. Newbold’s position is supported by the
North Carolina Supreme Court’s post-Allen decision in State v.
                                 17
a term of imprisonment of at least ten years.                    He explains that

although    the    maximum    aggravated        punishment      for   his   previous

convictions would have been at least ten years, the maximum non-

aggravated punishment was six years, which, as the maximum sentence

allowed under Blakely, is less than the ten years needed to serve as

predicate “serious drug offenses” under the ACCA.

       While      clever,    Newbold’s        argument   must     fail.     Section

924(e)(2)’s definition of “serious drug offense” requires that the

previous conviction be “an offense . . . for which a maximum term of

imprisonment of ten years or more is prescribed by law.”                            18

U.S.C.A. 924(e)(2)(emphases added).             Clearly, the word “maximum” is

linked to the conduct, the “offense,” and not to the individual

convicted   of    the   offense.    Thus,        the   proper    inquiry    under    §

924(e)(2) is not whether the individual defendant was sentenced to

a term of ten years or more, but whether any defendant convicted of

the crime could be sentenced to ten years or more of imprisonment.

If any possible conviction for the offense carries a term of

imprisonment of at least ten years, then the offense may serve as a



Norris, 630 S.E.2d 915, 916 (N.C. 2006). The Government, however,
argues that Newbold’s reliance on Allen was misplaced in the first
place because Allen expressly limited applications of its holdings
to “cases in which the defendants have not been indicted as of the
certification date of this opinion and to cases that are now
pending on direct review or are not yet final.” Allen, 615 S.E.2d
at 450 (internal quotation marks omitted). We need not delve into
this disagreement here, as Newbold’s argument can be pressed on the
basis of Blakely without resort to reliance on Allen.


                                         18
predicate crime under the ACCA. We have reached similar conclusions

in other contexts.     See United States v. Jones, 195 F.3d 205, 206-07

(4th Cir. 1999)(holding in the context of a § 922(g)(1) conviction

that a prior North Carolina conviction was for a “crime punishable

by imprisonment for a term exceeding one year” if any defendant

charged with that crime could receive a sentence of more than one

year); United States v. Harp, 406 F.3d 242, 246-47 (4th Cir.

2005)(reaching same conclusion as Jones in interpreting nearly

identical language under U.S.S.G. § 4B1.2).

     Blakely does not change this outcome.             North Carolina courts

have concluded that the state sentencing regime can accommodate the

process that Blakely demands; so long as aggravating factors are

admitted by the defendant or proved to the jury beyond a reasonable

doubt,    a    sentencing   court   may   impose   a    sentence   above    the

presumptive range and up to the maximum sentence allowed by statute.

See State v. Norris, 630 S.E.2d 915, 916 (N.C. 2006)(assuming that,

after Blakely, “aggravating” factors may still enhance a defendant’s

sentence beyond the presumptive range so long as such factors are

admitted by the defendant or proved to a jury beyond a reasonable

doubt).       Moreover, our decision in Harp dictates that, even post-

Blakely, “we consider the maximum aggravated sentence that could be

imposed for that crime upon a defendant with the worst possible

criminal history.”      Harp, 406 F.3d at 246 (emphasis omitted).          Thus,

even taking Blakely’s holding into account, Newbold’s previous drug

convictions still count as predicate “serious drug offenses” under
                                19
the ACCA because some instance of conviction of those crimes could

result in a sentence of ten years’ imprisonment.       Accordingly, the

district court did not err in sentencing Newbold as an armed career

criminal pursuant to § 924(e)(2) and U.S.S.G. § 4B1.4.



                                    C.

       We also reject Newbold’s argument that the district court

violated his confrontation rights under the Sixth Amendment by

relying on testimonial hearsay in the PSR at sentencing.          Because

Newbold preserved this issue by objecting on the basis of Crawford

v. Washington, 541 U.S. 36 (2004), we review de novo his Sixth

Amendment claim.     See United States v. Mackins, 315 F.3d 399, 405

(4th Cir. 2003).

       In Crawford, the Supreme Court held that the Confrontation

Clause prohibits the admission at trial of testimonial statements

that   are   not   subject   to   cross-examination.   Id.   at    50-51.

Dissenting in Blakely, Justice Breyer suggested that under the

Blakely   majority’s interpretation of the Sixth Amendment, district

courts’ use of PSRs containing testimonial hearsay might violate the

Confrontation Clause under Crawford.         Blakely, 542 U.S. at 346

(Breyer, J., dissenting).     Seizing on Justice Breyer’s observation,

Newbold invites us to extend Crawford to sentencing and hold here

that the district court’s reliance on the PSR -- which he contends

is brimming with testimonial hearsay -- violated the Confrontation

Clause.
                                    20
     While post-Crawford and post-Blakely/Booker courts have paused

to question the continuing validity of allowing testimonial hearsay

at sentencing, none of those courts have concluded that the rule

announced in Crawford applies at sentencing.           See United States v.

Katzopoulos, 437 F.3d 569, 576 (6th Cir. 2006)(“Though the cases may

be a broad signal of the future, there is nothing specific in

Blakely, Booker, or Crawford that would cause this Court to reverse

its long-settled rule of law that [the] Confrontation Clause permits

the admission of testimonial hearsay at sentencing proceedings.”);

United States v. Chau, 426 F.3d 1318, 1323 (11th Cir. 2005)(same);

United States v. Martinez, 413 F.3d 239, 243 (2d Cir. 2005)(same);

United States v. Luciano, 414 F.3d 174, 179 (1st Cir. 2005)(same).

We likewise find nothing in Blakely or Booker that “necessitates a

change in the majority view that there is no Sixth Amendment right

to confront witnesses during the sentencing phase.”            Luciano, 414

F.3d at 179.     We therefore reject Newbold’s Confrontation Clause

argument.



                                    D.

     Newbold also argues that his sentence violates the Sixth

Amendment because it contains a number of offense-level adjustments

--   including    adjustments    based   on        drug-quantity,    firearms

possession,    and   amounts    laundered     --     that   were    based   on

impermissible factual findings by the district court and not on

facts admitted by him or found by a jury beyond a reasonable doubt.
                                 21
He cites Blakely and Booker as support for his argument.                   There are,

however, two problems with this argument, one practical and one

precedential.       First, as a practical matter, we note that the

district    court’s     factual     findings      concerning        drug   quantity,

Newbold’s possession of a firearm in connection with drug and money

laundering offenses, and cash amounts laundered by him did not

affect his sentence because the district court ultimately sentenced

him as an armed career criminal pursuant to § 924(e) and U.S.S.G. §

4B1.4.    This automatically increased his offense level to 34, which

exceeded the offense level that was calculated based on the various

factual findings that Newbold now challenges. Even assuming for the

sake of argument that the district court erred in finding these

facts, they ultimately did not bear on the length of Newbold’s

sentence.

     Second, as a precedential matter, we have held post-Booker that

district courts do not violate the Sixth Amendment by finding facts

at sentencing under an advisory Guidelines regime that do not

increase    a   defendant’s   sentence       beyond   the    statutory       maximum

sentence that could have been imposed based on the defendant’s

admissions and jury findings alone.              United States v. Morris, 429

F.3d 65, 72 (4th Cir. 2005).         We have stated that “Booker does not

in the end move any decision from judge to jury, or change the

burden of persuasion,” and that the “remedial portion of Booker held

that decisions about sentencing factors will continue to be made by

judges,    on   a   preponderance    of    the   evidence,     an    approach   that
                                          22
comports with the sixth amendment so long as the guideline system

has some flexibility in application.” Id. (internal quotation marks

omitted).    Because Newbold’s      within-Guidelines sentence does not

exceed the statutory maximum sentence that could have been imposed

based   on   his   admissions   alone,   there   is   no   cognizable   Sixth

Amendment error.

     This leads us to Newbold’s final argument.            Newbold contends

that the district court should not have applied the career-offender

and armed-career-criminal enhancements to his sentence because his

previous convictions were not charged in the indictment and were

neither admitted by Newbold nor proved to the jury.            Newbold does

not challenge the existence of his prior convictions; rather, he

argues that the Supreme Court’s decisions in Apprendi v. New Jersey,

530 U.S. 466 (2000), Blakely, and Booker all “suggest that when

sentencing    pursuant    to    a   recidivist    statute     or   guideline

enhancement, a defendant’s prior convictions must either be admitted

to by the defendant or pled and proven by the government beyond a

reasonable doubt.”     (Appellant’s Br. at 7-8.)

     Newbold’s argument, however, is foreclosed by the Supreme

Court’s decision in Almendarez-Torres v. United States, 523 U.S.

224, 227 (1998)(holding that, for purposes of sentencing under

recidivist provisions in statutes, prior convictions do not need to

be charged in the indictment or proved to the jury).                    As we

explained in United States v. Cheek, 415 F.3d 349 (4th Cir.), cert.

denied, 126 S. Ct. 640 (2005), “we are not free to overrule or
                              23
ignore the Supreme Court’s precedents.”    Id. at 353 (citing State

Oil Co. V. Khan, 522 U.S. 3, 20 (1997)(“[I]t is the [Supreme]

Court’s prerogative alone to overrule one of its precedents.”)).

Until that day comes, we must reject Newbold’s argument.6



                              III.

     In sum, we hold that the district court properly applied the

career-offender and armed-career-criminal enhancements in determining

Newbold’s sentence.   We likewise reject Newbold’s arguments that the

district court violated the Sixth Amendment by sentencing him based

on facts not submitted to the jury and by relying on testimonial

hearsay at sentencing. Accordingly, we affirm Newbold’s convictions.



                                                            AFFIRMED




     6
      Newbold concedes that he primarily makes this argument to
preserve it for future review because he believes that Almendarez-
Torres has been called into question by Blakely and Booker.
                                24
