                               UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                               No. 04-4699



UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

          versus


CHANC DEON SNIPES,

                                              Defendant - Appellant.



Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. Frank W. Bullock, Jr.,
District Judge. (CR-04-39)


Submitted:   August 12, 2005             Decided:   November 29, 2005


Before LUTTIG, MICHAEL, and DUNCAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Louis C. Allen, III, Federal Public Defender, William S. Trivette,
Assistant Federal Public Defender, Greensboro, North Carolina, for
Appellant. Anna Mills Wagoner, United States Attorney, Michael A.
DeFranco, Assistant United States Attorney, Greensboro, North
Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

          Chanc    Deon   Snipes   appeals      the   72-month    sentence   he

received after he pled guilty to one count for possession of a

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

§§ 922(g)(1) and 924(a)(2) (2000).         We affirm Snipes’ sentence.

          Snipes 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   Specifically, Snipes claims that his rights under the

Sixth Amendment were violated when the district court determined

his base offense level, under U.S. Sentencing Guidelines Manual

§ 2K2.1(a)(2) (2003), by considering a prior conviction for which

he was not indicted.2       Because Snipes preserved this issue by

objecting to the presentence report and at his sentencing hearing

based upon Blakely, this court’s review is de novo.                See United

States v. Mackins, 315 F.3d 399, 405 (4th Cir. 2003).




     1
      Based on this court’s 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
      Snipes’ controlled substance offense for felony possession
with intent to manufacture, sell and deliver cocaine was part of
the indictment.   However, Snipes’ crime of violence for felony
indecent liberties with a minor was not in the indictment.

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            The Supreme Court held in United States v. Booker, 125 S.

Ct. 738, 746, 750 (2005), 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.                  In Almendarez-

Torres v. United States, 523 U.S. 224, 233-35 (1998), 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 no Sixth Amendment error occurred.                  Had the

district court only considered Snipes’ prior conviction for a

controlled substance offense, which was not a fact outside the

indictment, then Snipes’ base offense level would have been twenty,

under USSG § 2K2.1(a)(4)(A) (a base offense level of twenty applies

if   “the   defendant   committed   any     part   of   the   instant   offense

subsequent to sustaining one felony conviction for either a crime

of violence or a controlled substance offense”), instead of twenty-

four.     Therefore, Snipes’ maximum total offense level would have

been twenty rather than twenty-one.3         Based on offense level twenty


      3
      As in United States v. Evans, 416 F.3d 298 (4th Cir. 2005),
for purposes of determining whether a Sixth Amendment violation
occurred, the sentence imposed on Snipes is compared against the
guideline range that was properly determined (thus not considering
the challenged base offense level of twenty-four, under USSG
§ 2K2.1(a)(2)) before that range was adjusted to account for the
three-point reduction in offense level Snipes received for

                                    - 3 -
and Snipes’ criminal history category of V, Snipes’ sentencing

range would have been sixty-three to seventy-eight months. Snipes’

actual sentence of seventy-two months fell squarely within that

range.     Because    Snipes’    sentence    did    not    exceed       the    maximum

authorized by the facts of the offense to which he pled guilty,

there was no Sixth Amendment violation in his sentencing.

           Regarding     his     criminal     history          points    for     prior

convictions, Snipes argues that the factual findings required to

determine whether particular convictions are countable and how many

points are assessed involve more than the mere fact of a prior

conviction   and     therefore    are   subject     to    the       requirements    of

Blakely.     However,     the    application       of    the    prior    conviction

exception to Snipes does not raise any of the problems outlined in

Shepard v. United States, 125 S. Ct. 1254, 1262-63 (2005), because

no facts related to Snipes’ prior convictions were disputed.

Therefore,   the     district    court’s    assessment         of    seven    criminal

history points based on Snipes’ prior convictions did not violate

the Sixth Amendment.

           Turning to the two criminal history points assessed

because Snipes committed the instant offense while on unsupervised

probation and the one point for committing the instant offense less

than two years after release from imprisonment on a sentence

counted under USSG § 4A1.1(a) or (b), we conclude that the district


acceptance of responsibility.

                                    - 4 -
court did not err in assessing these points because they do not

require   evaluation      of    the   type    of   facts   found    outside    the

indictment     that   are      “too   far    removed   from   the     conclusive

significance    of    a   prior   judicial    record.”      United    States    v.

Washington, 404 F.3d 834, 842 (4th Cir. 2005).

           Accordingly, we affirm Snipes’ 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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