                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 05-4116



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

          versus


STANLEY KELLY,

                                              Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. James C. Fox, Senior
District Judge. (CR-04-238)


Submitted:   May 26, 2006                  Decided:   June 30, 2006


Before MOTZ, TRAXLER, and KING, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Dennis H. Sullivan, Jr., THE SULLIVAN LAW FIRM, P.C., Wilmington,
North Carolina, for Appellant. Frank D. Whitney, United States
Attorney, Anne M. Hayes, Christine Witcover Dean, Assistant United
States Attorneys, Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

          Stanley Kelly pled guilty to possession of a firearm and

ammunition    by   a   convicted   felon,   in   violation   of   18   U.S.C.

§ 922(g)(1) (2000).      He appeals his 57-month sentence arguing that

he was sentenced in violation of his Sixth Amendment rights under

United States v. Booker, 543 U.S. 220 (2005), and that the court’s

application of the guidelines as mandatory warrants resentencing.

We affirm.

          Kelly first argues that he was sentenced in violation of

his Sixth Amendment rights under Booker.          Because Kelly preserved

this issue by objecting to the presentence report on the basis of

Blakely v. Washington, 542 U.S. 296 (2004), this court reviews for

harmless error. United States v. Rodriguez, 433 F.3d 411, 415 (4th

Cir. 2006).    Under the harmless error standard, this court “must

reverse unless [it] find[s] this constitutional error harmless

beyond a reasonable doubt, with the Government bearing the burden

of proving harmlessness.”      United States v. Mackins, 315 F.3d 399,

405 (4th Cir. 2003) (citations omitted); see United States v.

White, 405 F.3d 208, 223 (4th Cir.) (discussing difference in

burden of proving that error affected substantial rights under

harmless error standard in Fed. R. App. P. 52(a), and plain error

standard in Fed. R. App. P. 52(b)), cert. denied, 126 S. Ct. 668

(2005).




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          To ascertain whether the defendant’s sentence violated

his or her Sixth Amendment rights post-Booker, this court looks to

the defendant’s “guideline range based on the facts he admitted

before adjusting that range for acceptance of responsibility.”

United States v. Evans, 416 F.3d 298, 300 n.4 (4th Cir. 2005).

Here, excluding the two-level enhancement for a stolen firearm and

the   three-level   downward   adjustment    for   acceptance   of

responsibility, Kelly’s offense level would have been twenty and he

would have been subject to a higher guideline range of 51 to 63

months of imprisonment.   U.S. Sentencing Guidelines Manual Ch. 5,

Pt. A (Sentencing Table) (2004). Because Kelly’s 57-month sentence

does not exceed the maximum sentence authorized by the facts he

admitted, the enhancement did not result in Sixth Amendment error.

Evans, 416 F.3d at 300-01.

          Kelly also claims the district court erred in calculating

his criminal history category because the district court assigned

him criminal history points for the commission of the crime while

on probation for a prior offense pursuant to USSG §§ 4A1.1(d),

4A1.2.   He claims this enhancement violated Booker because the

district court’s finding that he committed the offense while on

probation was a fact neither admitted by him nor found by a jury

beyond a reasonable doubt.

          In Almendarez-Torres v. United States, 523 U.S. 224

(1998), the Supreme Court held that “the government need not allege


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in its indictment and need not prove beyond reasonable doubt that

a defendant had prior convictions for a district court to use those

convictions for purposes of enhancing a sentence.” See also United

States   v.   Cheek,     415    F.3d    349      (4th     Cir.)   (noting   that

Almendarez-Torres was not overruled by Booker), cert. denied, 126

S. Ct. 640 (2005).      However, in United States v. Washington, 404

F.3d 834, 842-43 (4th Cir. 2005), this court, applying Shepard v.

United States, 544 U.S. 13 (2005), held that relying on facts

outside the indictment in order to conclude a prior conviction for

burglary was a crime of violence that enhanced the defendant’s

offense level was plain error warranting correction.

           Kelly’s     case    is   distinguishable        from   the   facts   in

Washington, because the district court’s assessment of criminal

history points in this case only required that the district court

determine when Kelly committed the offenses relative to the date of

the instant offense and how long his probation lasted--matters

ascertainable from the judicial record.                 Thus, we find that the

court’s assessment of criminal history points because Kelly was

under a criminal justice sentence when he committed the charged

offenses was not improper. See United States v. Thompson, 421 F.3d

278, 285 (4th Cir. 2005) (“The trial judge was entitled to rely

upon the [presentence report] because it bears the earmarks of

derivation from Shepard-approved sources such as the indictments

and   state-court    judgments      from   his    prior     convictions,    and,


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moreover, [defendant] never raised the slightest objection either

to the propriety of its source material or to its accuracy.”),

cert. denied, 126 S. Ct. 1463 (2006).

              Last, Kelly argues that his sentence must be vacated and

the case remanded for resentencing because the district court

treated the guidelines as mandatory.           The Government responds that

the district court’s announcement of an identical alternative,

discretionary sentence rendered any error harmless.

              This court has recognized that the application of the

guidelines as a mandatory determinant in sentencing is error that

is   plain.      White,   405   F.3d    at   216-17.   The   court   has   also

recognized that a Blakely objection at sentencing is sufficient to

preserve a claim of statutory error in applying the guidelines in

a mandatory fashion.       Rodriguez, 433 F.3d at 416.

              In this case, the district court clearly announced that

it would impose the same sentence in this case if the guidelines

were treated as advisory.        See White, 405 F.3d at 224.         Given the

identical alternative sentence, the Government can show that the

error in treating the guidelines as mandatory did not affect

Kelly’s substantial rights.            See White, 405 F.3d at 223 (noting

that substantial rights inquiry is the same under plain or harmless

error and that only difference is who bears burden of proof); see

also United States v. Revels, __ F.3d __, 2006 WL 1134148, *3 (4th

Cir. May 1, 2006) (holding a Sixth Amendment error harmless because


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the district court announced an identical alternate sentence after

considering the guidelines as advisory only and thus the error did

not affect the outcome of the proceeding).    Because the district

court imposed a discretionary alternative sentence, Kelly cannot

demonstrate prejudice.

          Accordingly, we affirm Kelly’s sentence.     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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