                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 04-5094



UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

          versus


JOHN ASTRIN MATTHEWS,

                                              Defendant - Appellant.



Appeal from the United States District Court for the District of
South Carolina, at Florence.   Terry L. Wooten, District Judge.
(CR-04-143)


Submitted:   October 12, 2005             Decided:   January 30, 2006


Before NIEMEYER and MOTZ, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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:

           John   Astrin   Matthews    appeals    his   186-month   sentence

entered pursuant to his guilty plea to possession of a firearm by

a   convicted   felon.     Matthews    contends   that    his   sentence   is

erroneous in light of United States v. Booker, 125 S. Ct. 738

(2005).   We affirm.

           Matthews first argues that his enhancement for possession

of a stolen firearm and his classification as an armed career

criminal violated the Sixth Amendment.            Because he raised this

claim below, review is de novo.        See United States v. Mackins, 315

F.3d 399, 405 (4th Cir. 2003).        When a defendant preserves a Sixth

Amendment error, 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.”             Id.

           In Booker, the Supreme Court held that 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.

125 S. Ct. at 746, 750.        The Court remedied the constitutional

violation by severing two statutory provisions, thereby making the

guidelines advisory.       Id. at 756-67.    In the wake of Booker, we

have held that, for prisoners sentenced pre-Booker under the

mandatory guidelines scheme, it is error to impose a sentence

exceeding the maximum allowed based only on the facts admitted or


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found by a jury.    United States v. Hughes, 401 F.3d 540, 547 (4th

Cir. 2005).    This holding is subject to an exception for prior

convictions, which need not be either admitted or proven beyond a

reasonable doubt in order to be used to enhance a sentence.      See

Apprendi v. New Jersey, 530 U.S. 466, 490 (2000).

            With regard to his treatment as an armed career criminal,

Matthews asserts that, even in the face of Apprendi, the district

court made an unconstitutional factual finding that his prior

convictions were either violent felonies or controlled substance

offenses.   He relies, in part, on Shepard v. United States, 125 S.

Ct. 1254, 1262-63 (2005), in which the Supreme Court held that

Sixth Amendment protections apply to disputed facts about a prior

conviction that are not evident from “the conclusive significance

of a prior judicial record.”

            However, the facts relied upon by the district court here

are facts of, not about, Matthews’s prior convictions. A court may

look to “the statutory definitions of the prior offenses” to

determine whether a defendant has been convicted of “a violent

felony or a serious drug offense” under 18 U.S.C. § 924(e)(1).

Taylor v. United States, 495 U.S. 575, 600 (1990).      Matthews has

convictions for aggravated assault with a weapon, threatening the

life of a public official, possession of cocaine with intent to

deliver, and second degree burglary, which South Carolina law

defines as “enter[ing] a dwelling without consent and with intent


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to commit a crime therein.” S.C. Code Ann. § 16-11-312. The

“statutory definitions” of Matthews’s “prior offenses” thus clearly

qualify him as an armed career criminal.

            Matthews also asserts that the district court violated

the Sixth Amendment by enhancing his sentence for possession of a

stolen firearm. However, even if the district court’s finding that

Matthews possessed a stolen firearm constituted improper judicial

fact-finding for Booker purposes, this enhancement did not affect

Matthews’s sentence, as his armed career criminal status alone

determined his offense level.         See U.S. Sentencing Guidelines

Manual § 4B1.4(b)(3) (2003).    Thus, any Sixth Amendment error was

harmless.

            Finally, Matthews contends that the district court erred

by treating the guidelines as mandatory, rather than advisory, as

Booker requires.      Sentencing    under   a   mandatory    regime   is    “a

separate class of error . . . distinct from the Sixth Amendment

claim that gave rise to the decision in Booker.”        Hughes, 401 F.3d

at 553.   In United States v. White, 405 F.3d 208, 217-22 (4th Cir.

2005), we held that, although treating the guidelines as mandatory

was plain error, prejudice could not be presumed.           Here, while the

district court clearly erred in sentencing Matthews under the

mandatory guidelines scheme, we hold for the following reasons that

the Government demonstrated that any error was harmless.                   See

United States v. Stokes, 261 F.3d 496, 499 (4th Cir. 2001) (during


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harmless error review, Government must show that the error did not

actually affect the outcome of the proceedings).

           First, the district court did not sentence Matthews to

the lowest end of the guideline range.        While the court could have

given   Matthews   a   lower    sentence,    even   under   the   mandatory

guidelines scheme, it chose not to.          Second, the district court

explicitly noted that, even if the guidelines were advisory, it

would impose the same sentence in accordance with 18 U.S.C.A.

§ 3553 (West 2000 & Supp. 2005).          Thus, the Government has shown

beyond a reasonable doubt that Matthews would not receive a shorter

sentence under an advisory guideline system.

           Based on the foregoing, we affirm Matthews’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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