                               UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                               No. 04-5083



UNITED STATES OF AMERICA,

                                                Plaintiff- Appellee,

          versus


JAMES EDWARD WILSON,

                                              Defendant - Appellant.


Appeal from the United States District Court for the District of
South Carolina, at Florence.   Terry L. Wooten, District Judge.
(CR-03-1058)


Submitted:   October 7, 2005             Decided:   December 29, 2005


Before NIEMEYER, LUTTIG, and DUNCAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Michael A. Meetze, Assistant Federal Public Defender, Florence,
South Carolina, for Appellant. Jonathan S. Gasser, Acting United
States Attorney, Rose Mary Parham, Assistant United States
Attorney, Florence, South Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            James Edward Wilson appeals from his 192 month prison

sentence for possession of a firearm by a convicted felon in

violation of 18 U.S.C. § 922(g)(1) (2000).*          Finding no reversible

error, we affirm.

            Wilson contends the district court improperly enhanced

his sentence by using his prior convictions to conclude he was an

armed career criminal under U.S. Sentencing Guidelines Manual

§ 4B1.4(a) (2004).      Because Wilson preserved his Sixth Amendment

claim by objecting to his armed career criminal classification

based upon Blakely v. Washington, 124 S. Ct. 2531 (2004), this

court’s review is de novo.      See United States v. Mackins, 315 F.3d

399, 405 (4th Cir. 2003).      This court has ruled that the nature and

occasion of prior offenses are facts inherent in the convictions

and that the government does not have to allege prior convictions

in   the   indictment   or   submit    proof   of   them   to   a   jury   as   a

prerequisite to applying the armed career criminal enhancement.

United States v. Thompson, 421 F.3d 278, 285-87 (4th Cir. 2005).

Thus, the district court did not err when it considered Wilson’s

prior convictions in calculating his sentence.

            Wilson also asserts that the district court improperly

applied an offense level of thirty-four under USSG § 4B1.4(b)(3)(A)

using the judicially found fact of possession of a firearm instead


      *
       Wilson does not challenge his conviction.

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of an offense level of thirty-three under USSG § 4B1.4(b)(3)(B).

An   offense    level   of   thirty-three      with   the     acceptance      of

responsibility three level reduction results in a total offense

level of thirty for a guideline range of 168-210 months.            Wilson’s

192 month sentence falls within that range.           If the acceptance of

responsibility reduction is excluded from this determination, as in

United States v. Evans, 416 F.3d 298 (4th Cir. 2005), Wilson’s

requested    offense    level   of   thirty-three     would    result    in    a

sentencing range of 235-298 months, far higher than his actual

sentence.      Under either calculation, the district court did not

commit any reversible Sixth Amendment error when it applied the

judicially found fact that Wilson had possessed a firearm.

            Wilson avers that the district court’s treatment of the

sentencing guidelines as mandatory requires resentencing.                     As

Wilson preserved this claim, we review the error under the harmless

error analysis.     See United States v. Booker, 125 S. Ct. 738, 769

(2005).     The Government bears the burden in harmless error review

of showing beyond a reasonable doubt that the error did not affect

the defendant’s substantial rights.          United States v. Mackins, 315

F.3d 399, 405 (4th Cir. 2003).        Affecting substantial rights means

that the error affected the outcome of the proceedings.                 United

States v. Stokes, 261 F.3d 496, 499 (4th Cir. 2001).             An error in

sentencing may be disregarded if the reviewing court is certain

that any such error “did not affect the district court’s selection


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of the sentence imposed.” Williams v. United States, 503 U.S. 193,

203 (1992).

              The Tenth Circuit framed the harmless error analysis by

asking whether the Booker error affected the sentence the defendant

would    receive   under    the   post-Booker     framework       of    consulting

advisory guidelines, the 18 U.S.C. § 3553(a) (2000) factors, and

review for unreasonableness.          United States v. Labastida-Segura,

396 F.3d 1140, 1142 (10th Cir. 2005).                 Other circuits, in cases

where the district court imposed an alternative sentence, have

found remand for resentencing appropriate unless it is clear that

the lower court adequately took into account § 3553(a) in imposing

sentence.     See United States v. Serranto-Dominguez, 406 F.3d 1221,

1224 (10th Cir. 2005).       In this case, the district court did impose

an alternate sentence in accordance with United States v. Hammoud,

381 F.3d 316, 353-54 (4th Cir. 2004) (en banc), judgment vacated,

125 S. Ct. 1051 (2005), identical to Wilson’s actual sentence.

When the district court imposed its alternate sentence, it stated

that    the   alternate    sentence   was     being    imposed    pursuant    to   §

3553(a). The Government thus satisfied its burden of demonstrating

that the district court’s error in sentencing Wilson under the

mandatory     guidelines    was   harmless     error     that    did   not   affect

Wilson’s substantial rights.

              Accordingly, we affirm Wilson’s sentence.                We dispense

with oral argument because the facts and legal contentions are



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adequately   presented   in   the    materials   before   the   court   and

argument would not aid the decisional process.

                                                                 AFFIRMED




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