                             UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                             No. 05-4784



UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

          versus


ROGER DALE CHARLES, II,

                                              Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Bryson City. Lacy H. Thornburg,
District Judge. (CR-04-27)


Submitted:   July 28, 2006                 Decided:   August 22, 2006


Before WILKINS, Chief Judge, and WIDENER and DUNCAN, Circuit
Judges.


Affirmed by unpublished per curiam opinion.


Charles Wyatt McKeller, Brevard, North Carolina, for Appellant.
Gretchen C. F. Shappert, United States Attorney, Charlotte, North
Carolina; Amy E. Ray, Assistant United States Attorney, OFFICE OF
THE UNITED STATES ATTORNEY, Asheville, North Carolina, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

     Roger Dale Charles, II, appeals his conviction and sentence

for drug and firearm offenses.                We affirm.



                                              I.

     A jury convicted Charles of possessing more than 50 grams of

cocaine    base    with    the     intent     to     distribute,      see    21    U.S.C.A.

§ 841(a)(1), (b)(1)(A) (West 1999 & Supp. 2006) (Count One), and

possessing firearms after having been convicted of a felony, see 18

U.S.C.A. § 922(g)(1) (West 2000) (Count Three). At sentencing, the

district    court       determined       that       Charles’    statutory         range    of

imprisonment       for    Count     One       was     20    years     to    life.         See

21 U.S.C.A. § 841(b)(1)(A).                   Based on Charles’ prior Florida

convictions       for    battery    on    a    law    enforcement      officer,       armed

burglary with a deadly weapon, and escaping and resisting an

officer with violence, the court concluded that the statutory range

for Count Three was 15 years to life.                  See 18 U.S.C.A. § 924(e)(1)

(West   Supp.     2006).         Grouping      the    two    offenses       together      and

determining that Charles qualified as a career offender, see United

States Sentencing Guidelines Manual § 4B1.1 (2004), the district

court calculated a resulting offense level of 37, which, when

combined    with    a    criminal     history        category    of    VI,    yielded      an

advisory guideline range of 360 months to life imprisonment. After

considering this range and the other factors set forth in 18


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U.S.C.A. § 3553(a) (West 2000 & Supp. 2006), the district court

concluded    that   the   advisory   guideline   range   “provide[d]    an

appropriate window in which the Court should enter sentence.” J.A.

339.    The district court sentenced Charles to concurrent terms of

360 months imprisonment on Counts One and Three.



                                     II.

       Charles first argues that the district court violated his

Sixth Amendment rights by finding facts about his prior convictions

and using those facts to sentence him as a career criminal.             We

find no reversible error.

       Since Charles failed to raise this objection at sentencing,

our review is for plain error.       See Fed. R. Crim. P. 52(b); United

States v. Olano, 507 U.S. 725, 731-32 (1993).       To establish plain

error, Charles must show that an error occurred, that the error was

plain, and that the error affected his substantial rights.             See

Olano, 507 U.S. at 732.       Even if Charles makes this three-part

showing, correction of the error remains within our discretion,

which we “should not exercise ... unless the error ‘seriously

affect[s] the fairness, integrity or public reputation of judicial

proceedings.’” Id. (quoting United States v. Young, 470 U.S. 1, 15

(1985)) (second alteration in original).

       Because United States v. Booker, 543 U.S. 220 (2005), rendered

the sentencing guidelines “effectively advisory,” Booker, 543 U.S.


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at 245, the use of the guidelines no longer “implicate[s] the Sixth

Amendment,” id. at 233. Stated another way, with the guidelines no

longer having the force of law, district courts may find facts

determining the proper sentence to impose within the statutory

range set by Congress without violating a defendant’s right to a

jury trial.    See id. at 259.    Here, the finding by the jury that

Charles possessed more than 50 grams of cocaine base with the

intent   to   distribute    authorized    a    sentence    of   up    to   life

imprisonment for Count One. See 21 U.S.C.A. § 841(b)(1)(A). Thus,

the district court did not infringe upon Charles’ Sixth Amendment

rights by utilizing its own factual findings to select a sentence

within the appropriate statutory range for that count.               And, even

assuming that the district court utilized judicially found facts to

impose a sentence beyond the maximum statutorily authorized by the

jury     verdict     with      regard         to   Count        Three,      see

18 U.S.C.A. § 924(a)(2) (West 2000) (providing that statutory

maximum for § 922(g) violation is 10 years), that error did not

affect Charles’ substantial rights in light of the fact that his

Count Three sentence was ordered to run concurrently with the Count

One sentence of the same duration.       See United States v. Ellis, 326

F.3d 593, 599-600 (4th Cir. 2003) (holding that sentence exceeding

statutory maximum by at least 20 years did not affect substantial

rights   because   defendant   received    equal   or     longer     concurrent

sentences on other counts).


                                    4
                                 III.

      Charles next contends that the district court erred by failing

to instruct the jury that as an element of the Count Three offense,

the Government was required to prove that his civil rights had not

been restored following his prior felony convictions.        Again, we

disagree.

      Charles argues that because all of his prior convictions were

Florida convictions and he had completed his terms of imprisonment,

he was eligible for restoration of his civil rights.          See Fla.

Stat. § 940.05 (2005).*   Critically, however, § 940.05 provides for

the   discretionary,   rather   than    automatic,   restoration   of   a

defendant’s civil rights. See United States v. Owens, 15 F.3d 995,

997 (11th Cir. 1994) (emphasizing that “Florida courts uniformly

have held that the restoration of civil rights to a prisoner upon

release from state custody is neither automatic nor pro forma, but

is solely within the province of the governor’s discretionary



       *
       The statute provides:

      Any person who has been convicted of a felony may be
      entitled to the restoration of all the rights of
      citizenship enjoyed by him or her prior to conviction if
      the person has:

      (1) Received a full pardon from the board of pardons;

      (2) Served the maximum term of the sentence imposed upon
      him or her; or

      (3) Been granted his or her final release by the Parole
      Commission.

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function”).   We have held, under similar circumstances, that the

fact that the defendant’s civil rights have been restored is an

affirmative defense, and the opposite fact is not an element of a

§ 922 offense.     See United States v. Parker, 262 F.3d 415, 422-23

(4th Cir. 2001).

     In Parker, a defendant was charged with knowingly providing

ammunition to a convicted felon, see 18 U.S.C.A. § 922(d)(1) (West

2000).   For purposes of the decision, we assumed that a Maryland

court that had sentenced the felon had discretionary authority to

retroactively suspend entry of his three-year sentence and place

him on probation, thereby ending his status as a felon for firearm

possession purposes.        See Parker, 262 F.3d at 421.        Importantly,

though, we noted that in Maryland there is no period after which

restoration of a convicted felon’s civil rights is automatic.               See

id. at 423.        Relying on “[t]he general principle ... that a

condition   once    shown    to   exist   is   presumed   to   continue,”    we

concluded that the felon’s loss of the right to possess ammunition

was properly presumed to have continued absent evidence to the

contrary and thus that the government did not have to specifically

prove that the felon’s status had not changed when the defendant

provided him with the ammunition.          Id.   We added that the records

for the felon’s court of conviction were equally available to the

government and the defendant and that we were confident that had




                                      6
the felon’s status changed prior to the transfer of the ammunition,

“it would have been brought to our attention.”                 Id.

       The same principle requires affirmance here.                 While Charles’

completion of his terms of imprisonment created the possibility

that   his   right    to   possess   a    firearm      would   be    restored,   the

presumption    that    his    condition        would    continue     relieves    the

Government of having to prove specifically that his rights were not

restored prior to his firearm possession.               Had Charles’ right been

restored prior to that time, he could have asserted that fact as an

affirmative defense.



                                         IV.

       For the reasons set forth above, we affirm Charles’ conviction

and 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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