                             UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                             No. 05-4012



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

          versus


MACON LEONARD LEE,

                                              Defendant - Appellant.


Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. N. Carlton Tilley, Jr.,
Chief District Judge. (CR-04-256)


Submitted:   June 17, 2005                 Decided:   July 18, 2005


Before MOTZ, KING, and SHEDD, 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Affirmed by unpublished per curiam opinion.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, Randall S.
Galyon, 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Unpublished opinions are not binding precedent in this circuit.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:

          Macon Leonard Lee appeals his conviction for possession

with intent to distribute 118.8 grams of cocaine base in violation

of 21 U.S.C. § 841 (2000), and his sentence of life imprisonment

under the enhanced penalty provision of § 841(b)(1)(A). Finding no

error, we affirm.

          Lee first challenges the district court’s application of

§ 841(b)(1)(A)’s mandatory life sentence under United States v.

Booker, 125 S. Ct. 738 (2005).        He preserved this issue for

appellate review. Lee argues the district court violated Booker by

enhancing his sentence under § 841(b)(1)(A) based on his two prior

felony drug convictions when those convictions were not charged in

the indictment or found by the jury.     We note that Lee does not

deny the fact of his two prior felony drug trafficking offenses,

and the record of the sentencing hearing reflects that Lee, by

counsel, conceded that he had been convicted of the predicate

offenses for § 841's mandatory life sentence.*   Because Lee’s life

sentence was mandated by statute, the then mandatory sentencing

guidelines did not have any effect on his sentence.   Accordingly,

we find there is no error under Booker.      See United States v.


     *
      In any event, even if Lee had challenged the fact of the
prior convictions, the district court’s finding of predicate
convictions would fall squarely in the prior conviction exception
still viable after Booker. See, e.g., Shepard v. United States,
125 S. Ct. 1254 (2005); Apprendi v. New Jersey, 530 U.S. 466, 490
(2000); Almendarez-Torres v. United States, 523 U.S. 224, 488
(1998).

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Robinson, 404 F.3d 850, 862 (4th Cir. 2005) (“Booker did nothing to

alter the rule that judges cannot depart below a statutorily

provided minimum sentence.”).

             Lee     next    argues      that        his     life      sentence     is

constitutionally disproportionate to his offense in violation of

the Eighth Amendment’s ban against cruel and unusual punishment.

In considering this argument, we apply the three-part test of

Solem v. Helm, 463 U.S. 277 (1983), which examines:                        “(1) the

gravity of the offense and the harshness of the penalty, (2) the

sentences imposed on other criminals in the same jurisdiction, and

(3) the sentences imposed for commission of the same crime in other

jurisdictions.” United States v. Kratsas, 45 F.3d 63, 66 (4th Cir.

1995); see also Harmelin v. Michigan, 501 U.S. 957 (1991).                         We

conclude      that     Lee’s      sentence       is        not      constitutionally

disproportionate.           His   offense      was    serious    and    involved     a

relatively large amount of cocaine base.                   Also, Lee is a repeat

drug trafficking offender.          Applying the second prong of Solem,

this court has concluded that “it is clear that a life sentence for

a major drug violation is not disproportionate in comparison with

other   sentences     mandated     by    the    Guidelines       and    other     drug

statutes.”    Kratsas, 45 F.3d at 68.

             Lee also argues that the district court abused its

discretion in admitting evidence under Federal Rule of Evidence

404(b) relating to two of Lee’s arrests for drug possession and


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sale.   Rule 404(b) of the Federal Rules of Evidence prohibits the

admission    of    evidence   of   other    bad    acts   solely   to   prove   a

defendant’s bad character, but such evidence may be admissible for

other purposes, such as “proof of motive, opportunity, intent,

preparation, plan, knowledge, identity, or absence of mistake or

accident.”       Fed. R. Evid. 404(b); see also United States v. Hodge,

354 F.3d 305, 311-12 (4th Cir. 2004).         The decision of the district

court to admit such evidence is discretionary and will not be

disturbed unless it is “arbitrary or irrational.”                   See United

States v. Rawle, 845 F.2d 1244, 1247 (4th Cir. 1988).              We conclude

the district court did not abuse its discretion in admitting the

challenged evidence.

            Finally, Lee argues that the evidence was insufficient to

sustain    his    conviction.      This    court   must   affirm   Lee’s   jury

conviction if there is substantial evidence, when viewed in the

light most favorable to the Government, to support the jury’s

verdict.     Glasser v. United States, 315 U.S. 60, 80 (1942).                  We

conclude there was sufficient evidence to support the jury’s

verdict.

             Accordingly, we affirm Lee’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



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