                             UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                             No. 06-4865



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

          versus


RODRICKUS ANTONIO JAMISON,

                                              Defendant - Appellant.


Appeal from the United States District Court for the Western
District of Virginia, at Danville.   Jackson L. Kiser, Senior
District Judge. (4:05-cr-00025-jlk)


Submitted:   June 20, 2007                 Decided:   July 10, 2007


Before NIEMEYER, MOTZ, and DUNCAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


John Ian Davey, Danville, Virginia, for Appellant.         John L.
Brownlee, United States Attorney, Ronald Andrew Bassford, Assistant
United States Attorney, Roanoke, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

           Rodrickus Antonio Jamison was originally charged in a

four count indictment with various drug offenses.            Pursuant to a

plea agreement, Jamison pled guilty to one count of possession with

intent to distribute and distribution of more than five grams of

crack cocaine, in violation of 21 U.S.C. § 841(a)(1) (1999) and

(b)(1)(B) (1999).

           On July 31, 2006, Jamison appeared for sentencing.            Due

to two prior drug distribution convictions, Jamison was classified

as a Career Offender under § 4B1.1 of the sentencing guidelines.

Jamison’s advisory guidelines range recommended a sentence of 188

to 235 months imprisonment.         The district court imposed a sentence

of 188 months, and Jamison timely noted his appeal.               On appeal,

Jamison has filed a brief pursuant to Anders v. California, 386

U.S. 738 (1967).    Finding no error, we affirm.

           On appeal, Jamison alleges three errors in the court

below.   First, Jamison alleges that the district court wrongly

enhanced his sentence.        Jamison argues that his sentence violates

Blakely v. Washington, 542 U.S. 296 (2004), because his sentence

was   enhanced   based   on   his   criminal   history,   which   was   never

admitted by him or found by a fact-finder beyond a reasonable

doubt.   Jamison also contends that his enhancement as a Career

Offender violates the spirit of his plea agreement because, in his

plea agreement, the Government agreed not to file a notice of


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enhancement under 21 U.S.C. § 851 (1999).                  According to Jamison,

his plea agreement mentioned nothing about a Career Offender

enhancement under § 4B1.1, and therefore, he “was never afforded

the information necessary to make an intelligent choice as to

whether to accept the plea or go to a jury trial.”

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

Supreme Court held that “other than the fact of a prior conviction,

any   fact   that   increases      the    penalty    for    a    crime   beyond   the

prescribed statutory maximum must be submitted to a jury and proved

beyond a reasonable doubt.”             Apprendi, 530 U.S. at 490.          Jamison

was subject to a statutory maximum sentence of forty years.                   See 21

U.S.C. § 841(b)(1)(B). Thus, the district court’s use of Jamison’s

criminal history in determining his advisory guidelines range and

imposing     a   sentence   of    188    months     did    not   violate   Blakely.

Moreover, Jamison’s sentencing enhancement for being a Career

Offender under § 4B1.1 did not violate the spirit of his plea

agreement because 21 U.S.C. § 851 does not apply to enhancements

under the guidelines.       See United States v. Foster, 68 F.3d 86, 89

(4th Cir. 1995). Also, Jamison’s assertion that his plea agreement

did not warn him of a possible § 4B1.1 enhancement is contradicted

by paragraph six of his agreement, which states “because of my

prior criminal record I may be treated as a Career Offender under

the   Guideline     Section      4B1.1.”         Accordingly,     Jamison’s   first

argument is without merit.


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           Jamison’s   second        argument   on    appeal    is   that   the

Government improperly refused to move for a § 5K1.1 reduction of

his   sentence.    Pursuant     to    the    plain   language   of    the   plea

agreement, the Government retained sole discretion whether it would

file a motion for substantial assistance.            When the Government has

not promised to request a substantial assistance departure in

return for a defendant’s substantial assistance, a court may review

the prosecutor’s decision not to move for a departure only “if the

refusal is based on an unconstitutional motive, such as race or

religion, or is not rationally related to a permissible government

objective.”     United States v. LeRose, 219 F.3d 335, 341-42 (4th

Cir. 2000)(citing Wade v. United States, 504 U.S. 181, 185-86

(1992)).      Before the court may inquire into the Government’s

reasons for refusing to file a § 5K1.1 motion, a defendant must

make a “substantial threshold showing” of impropriety.               Id. at 342

(citing Wade, 504 U.S. at 186).              Jamison fails to make such a

showing.    The record makes clear that the Government refused to

move for a reduction because the information provided by Jamison

did not have the potential to lead to a case against anyone else.

Accordingly, Jamison’s second alleged error is rejected.

           Jamison’s third and final alleged error is that he was

sentenced in conflict with Shepard v. United States, 544 U.S. 13

(2005).    According to Jamison, the Supreme Court in Shepard held

that, because the Armed Career Criminal Act, 18 U.S.C.A. § 924(e)


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(West 2000 and Supp. 2007), raised a defendant’s sentence beyond

the sentence that could have lawfully been imposed by reference to

facts found by the jury or admitted by the defendant, 18 U.S.C.

§ 924(e) violates Apprendi.   Jamison argues that this is relevant

to Career Offender Act sentencing because his enhancement was not

based on facts found beyond a reasonable doubt or admitted by him.

           Jamison has misread the Shepard case.       Moreover, as

mentioned previously, Apprendi held that “other than the fact of a

prior conviction, any fact that increases the penalty for a crime

beyond the prescribed statutory maximum must be submitted to a jury

and proved beyond a reasonable doubt.”   Apprendi, 530 U.S. at 490.

While Jamison’s guideline range and the sentence imposed upon him

were enhanced because his prior criminal record qualified him as a

Career Offender, the statutory maximum sentence to which Jamison

was subject was not enhanced as a consequence of judicial fact-

finding.   Accordingly, Jamison’s third argument is rejected.

           In accordance with Anders, we have reviewed the record in

this case and have found no meritorious issues for appeal.       We

therefore affirm Jamison’s conviction and sentence.      This court

requires that counsel inform Jamison, in writing, of the right to

petition the Supreme Court of the United States for further review.

If Jamison requests that a petition be filed, but counsel believes

that such a petition would be frivolous, then counsel may move in




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this court for leave to withdraw from representation.   Counsel’s

motion must state that a copy thereof was served on Jamison.

          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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