                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 04-4885



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

          versus


FARUQ C. A. SHAFIQ,

                                              Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. James R. Spencer, District
Judge. (CR-03-338)


Submitted:   February 16, 2005         Decided:     November 30, 2005


Before WILKINSON, KING, and SHEDD, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Frank W. Dunham, Jr., Federal Public Defender, Charles D. Lewis,
Assistant Federal Public Defender, Meghan S. Skelton, Research and
Writing Attorney, Richmond, Virginia, for Appellant.       Paul J.
McNulty, United States Attorney, Michael J. Elston, Assistant
United States Attorney, Matthew C. Ackley, Special Assistant United
States Attorney, Richmond, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

          Following a bench trial, Faruq C. A. Shafiq was convicted

of possession of a firearm by a convicted felon, in violation of 18

U.S.C. § 922(g)(1) (2000) (Count One); possession with intent to

distribute cocaine base, in violation of 21 U.S.C. § 841 (2000)

(Count Two); possession of cocaine base, in violation of 21 U.S.C.

§ 844 (2000) (Counts Three and Eight); possession of heroin, in

violation of 21 U.S.C. § 844 (Count Four); possession of marijuana,

in violation of 21 U.S.C. § 844 (Count Five); and possession with

intent to distribute cocaine base, in violation of 21 U.S.C. § 841

(Count Seven).    The district court sentenced Shafiq under the

Federal Sentencing Guidelines to 121 months in prison.       Shafiq

timely appealed, challenging the calculation of his sentence under

the guidelines.   We affirm.

          Shafiq contends that his sentence is unconstitutional in

light of Blakely v. Washington, 542 U.S. 296 (2004).     His claims

are reviewed for plain error because they were not raised in the

district court.   Fed. R. Crim. P. 52(b); United States v. Harp, 406

F.3d 242, 247 (4th Cir. 2005), petition for cert. filed (July 29,

2005) (No. 05-5887).   To demonstrate plain error, a defendant must

establish that error occurred, that it was plain, and that it

affected his substantial rights. United States v. Hughes, 401 F.3d

540, 547-48 (4th Cir. 2005).    If the defendant establishes these

requirements, the court may exercise its discretion to notice the


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error “only when failure to do so would result in a miscarriage of

justice, such as when the defendant is actually innocent or the

error   seriously   affects     the     fairness,    integrity       or   public

reputation   of   judicial    proceedings.”         Id.   at   555    (internal

quotation marks and citations omitted).

          In United States v. Booker, 125 S. Ct. 738 (2005), 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.                  (Stevens, J.,

opinion of the Court).        The Court remedied the constitutional

violation by making the guidelines advisory through the removal of

two statutory provisions that had rendered them mandatory.                Id. at

746 (Stevens, J., opinion of the Court); id. at 756-57 (Breyer, J.,

opinion of the Court).

          Shafiq asserts two claims under Blakely.                   First, he

argues that his sentence violates the Sixth Amendment because he

received a two-level obstruction of justice enhancement pursuant to

U.S. Sentencing Guidelines Manual § 3C1.1 (2003) for perjury when

perjury was not charged in the indictment or proven beyond a

reasonable doubt.     Second, he claims that the court erred in

calculating his criminal history score.

          Addressing Shafiq’s criminal history argument first, in

calculating Shafiq’s criminal history score, the district court


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assigned six criminal history points based upon prior convictions,

two criminal history points based upon the court’s finding that

Shafiq committed the instant offense while on probation from a

conviction of driving on a suspended license, and one point because

the court found that he committed the instant offense less than two

years after release from an assault conviction.                USSG § 4A1.1

(2003).   Nine criminal history points placed Shafiq in criminal

history category IV.      USSG Ch. 5, Pt. A (Sentencing Table).

          While not disputing the six criminal history points for

prior convictions, Shafiq challenges the remaining three points,

arguing that the determination of whether he committed the instant

offense while on probation for one conviction and less than two

years after release from another conviction involved more than the

mere fact of prior convictions and therefore was subject to the

requirements     of    Blakely.         However,    the   district    court’s

determination was based solely on information inherent in Shafiq’s

prior convictions; namely, the date he was released from a sentence

and whether Shafiq was on probation for another offense at the time

he   committed   the    instant   offense.         We   conclude   that   such

information was not extraneous to the facts of Shafiq’s prior

convictions    and    therefore   did    not   constitute    factfinding    in

violation of the Sixth Amendment.          Cf. United States v. Thompson,

421 F.3d 278, 282-83 (4th Cir. 2005).




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                Turning    to   Shafiq’s     claim    that    the    district     court

violated his Sixth Amendment rights by enhancing his sentence for

obstruction of justice, pursuant to USSG § 3C1.1, we find that

Shafiq     is    not   entitled      to    relief.      The    presentence      report

calculated Shafiq’s guideline range to be 121 to 151 months in

prison. This finding was based on an offense level of twenty-seven

(based on the facts of conviction), plus a two-level increase for

obstruction of justice pursuant to USSG § 3C1.1, resulting in a

total offense level of 29.            The district court imposed a sentence

of   121    months        imprisonment.       Without    consideration       of    the

challenged obstruction of justice enhancement, Shafiq would have

had an offense level of 27.           Shafiq does not challenge the factual

findings underlying his conviction and, in light of his waiver of

a jury trial in favor of a bench trial, he could not realistically

contend that his Sixth Amendment rights were violated by the

district    court’s        setting   his    offense    level    at    27.    Without

consideration of the challenged obstruction of justice enhancement

and calculating his guideline range based on offense level 27 and

criminal history category IV, Shafiq’s guideline range would have

been 100 to 125 months.          USSG Ch. 5, Pt. A (Sentencing Table).              The

district court sentenced Shafiq to 121 months.                         Because this

sentence does not exceed the maximum sentence that could have been

imposed based on the facts of conviction found by the district

court after Shafiq waived his jury right, no Sixth Amendment


                                          - 5 -
violation occurred. See United States v. Evans, 416 F.3d 298, 300-

01 (4th Cir. 2005) (holding that if sentence does not exceed

maximum authorized by facts admitted by defendant or found beyond

a reasonable doubt, there is no Sixth Amendment violation).

           Accordingly, we affirm Shafiq’s convictions and sentence.

Shafiq’s motion to hold his appeal in abeyance pending the Supreme

Court’s decision in Booker is denied as moot.           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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