                              UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                              No. 04-4455



UNITED STATES OF AMERICA,

                                                Plaintiff - Appellee,

          versus


GABRIEL   HERNANDEZ-FLORES,     a/k/a    Gabriel
Hernandez-Garcia,

                                               Defendant - Appellant.


Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.   Louise W. Flanagan,
District Judge. (CR-04-7-FL)


Submitted:   August 8, 2005                 Decided:   August 26, 2005


Before MICHAEL, KING, and DUNCAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon,
Assistant Federal Public Defender, Raleigh, 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Unpublished opinions are not binding precedent in this circuit.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:

          Gabriel Hernandez-Flores appeals his sentence imposed

after a guilty plea, without a plea agreement, for illegal reentry

by a deported alien after conviction of an aggravated felony, in

violation of 8 U.S.C. § 1326(a) & (b)(2) (2000).   Finding no error,

we affirm.

          Hernandez-Flores   maintains   that   under   Blakely   v.

Washington, 542 U.S. 296 (2004), the district court violated his

Sixth Amendment rights by enhancing his offense level based on

facts that were neither charged in the indictment nor proven beyond

a reasonable doubt.1   Hernandez-Flores contends that the district

court’s sixteen-level increase in his offense level based upon a

prior drug trafficking conviction that resulted in a sentence

exceeding thirteen months, pursuant to U.S. Sentencing Guidelines

Manual § 2L1.2(b)(1)(A)(i) (2003), involved judicial fact finding

that violated the Sixth Amendment.2    Because Hernandez-Flores did

not raise this objection at sentencing, review is for plain error.


     1
      Based on this court’s then-dispositive decision in United
States v. Hammoud, 378 F.3d 426 (4th Cir.) (order), opinion issued
by 381 F.3d 316 (4th Cir. 2004) (en banc), vacated, 125 S. Ct. 1051
(2005), the Government asserted that Blakely did not apply to the
federal sentencing guidelines.
     2
      Hernandez-Flores acknowledges that without this enhancement
he would have still qualified for a twelve-level enhancement, as
required by USSG § 2L1.2(b)(1)(B) if the defendant has a drug
trafficking conviction resulting in a sentence of less than
thirteen months. Thus, Hernandez-Flores effectively assigns error
to the district court’s factual finding that increased his offense
level by four.

                               - 2 -
Fed. R. Crim. P. 52(b); United States v. Olano, 507 U.S. 725,

731-32 (1993).

           Under United States v. Booker, 125 S. Ct. 738, 746, 750

(2005), 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.         In Almendarez-Torres v. United

States, 523 U.S. 224, 233-35 (1998), which remains viable after

Booker, the Supreme Court held that the government need not allege

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. We find that the

application of the Almendarez-Torres prior conviction exception to

Hernandez-Flores’ sentencing was proper and does not conflict with

Shepard v. United States, 125 S. Ct. 1254, 1262 (2005) (holding

that Sixth Amendment protections apply to disputed facts “about a

prior conviction”).

           In United States v. Washington, 404 F.3d 834 (4th Cir.

2005), this court applied Shepard to find that the district court’s

reliance   on   disputed   facts   outside    the   indictment    concerning

whether Washington’s prior conviction was a “crime of violence,”

under USSG § 4B1.2(a)(2), violated the defendant’s Sixth Amendment

right to trial by jury.       Unlike Washington, the district court

enhanced   Hernandez-Flores’       sentence    based   on   the    term   of


                                   - 3 -
imprisonment for a prior conviction, not upon extra-indictment

facts to resolve a disputed fact about the nature of the prior

conviction.    Because Hernandez-Flores’ four-year sentence imposed

for his 1999 convictions is inextricably linked to the fact of

those   convictions,    we   conclude    that   the   district     court’s

enhancement   of   Hernandez-Flores’     sentence   based   upon   a   prior

conviction resulting in a sentence over thirteen months is not the

type of fact found outside the indictment that is “too far removed

from the conclusive significance of a prior judicial record.”

Washington, 404 F.3d at 842.

          Even if Hernandez-Flores’ sentence exceeded “the maximum

authorized by the facts established by [his] plea of guilty,” it

was nonetheless supported by facts otherwise “admitted by the

defendant.”    See Booker, 125 S. Ct. at 756.          Hernandez-Flores’

counsel stated at sentencing that following Hernandez-Flores’ last

conviction “he was sentenced to four years,” (JA 32), and as the

Government notes, Hernandez-Flores never disputed the accuracy of

the information in his PSR concerning his prior convictions and

sentences.    Because Hernandez-Flores admitted at sentencing that a

sentence imposed following a prior drug trafficking conviction

exceeded thirteen months, we find he could not establish for this

reason alone that a Sixth Amendment error occurred.

          Accordingly, we affirm Hernandez-Flores’ sentence.             We

dispense with oral argument because the facts and legal contentions


                                 - 4 -
are adequately presented in the materials before the court and

argument would not aid the decisional process.



                                                      AFFIRMED




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