                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 05-4151



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

          versus


CHRISTOPHER DEWAYNE BULLARD,

                                              Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. James C. Fox, Senior
District Judge. (CR-04-33-F)


Submitted:   October 26, 2005          Decided:     November 14, 2005


Before WILKINSON, LUTTIG, and MOTZ, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon,
Assistant Federal Public Defender, Windy C. Venable, Research and
Writing Attorney, Raleigh, North Carolina, for Appellant. Frank D.
Whitney, United States Attorney, Anne M. Hayes, Christine Witcover
Dean, Assistant United States Attorneys, Raleigh, North Carolina,
for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Christopher   Dewayne    Bullard       pled   guilty    without   the

benefit of a plea agreement to possession of a firearm by a

convicted felon, in violation of 18 U.S.C. §§ 922(g)(1), 924

(2000).     The district court sentenced Bullard to 120 months’

imprisonment, the statutory maximum sentence pursuant to 18 U.S.C.

§   924(a)(2)   (2000).    The   court      also    specified      an   identical

alternate sentence of 120 months’ imprisonment pursuant to this

court’s recommendation 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).                 Bullard appeals,

asserting that, pursuant to United States v. Booker, 125 S. Ct. 738

(2005), his sentence violates the Sixth Amendment because it was

enhanced under the mandatory federal sentencing guidelines scheme

based on facts found by the district court to which Bullard did not

admit.    We conclude that no Sixth Amendment error occurred.

            Initially, we reject Bullard’s claim that his criminal

history category was erroneously elevated from V to VI based upon

an impermissible judicial finding that he was serving a term of

probation when he committed the firearms offense to which he pled

guilty. The district court’s finding served as a valid factor upon

which Bullard’s sentence could be based because a defendant’s

probationary status constitutes a form of “data inherent in a prior

conviction [rather than] extraneous to it.”                 United States v.


                                    - 2 -
Thompson, 421 F.3d 278, 283 (4th Cir. 2005).             Accordingly, under

Almendarez-Torres v. United States, 523 U.S. 224 (1998), and its

progeny, the fact that Bullard was on probation could be relied

upon by the district court even though it was neither found by a

jury nor admitted to by Bullard.

           With Bullard’s criminal history score properly fixed at

VI, it follows that the district court’s judicial enhancement of

Bullard’s base offense level of 24 entailed no Sixth Amendment

consequence. This is so because the guideline sentencing range for

a defendant with an offense level of 24 and a criminal history

category of VI is 100-125 months.            Thus, no Sixth Amendment

violation occurred because Bullard received a prison term of 120

months, a sentence well within the permissible guideline range

before    adjusting     the    offense    level    for      acceptance    of

responsibility.*

           Accordingly, we affirm Bullard’s 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


      *
      As required by United States v. Evans, 418 F.3d 298, 300 n.4
(4th Cir. 2005), in determining whether Sixth Amendment error
occurred, the sentence imposed must be compared to the permissible
guideline range without consideration of any adjustment for
acceptance of responsibility.

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