                              UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                              No. 04-4796



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

          versus


DAVID PASCHELL SHABAZZ,

                                              Defendant - Appellant.


Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. W. Earl Britt, Senior
District Judge. (CR-03-315)


Submitted:   April 25, 2005                   Decided:   May 4, 2005


Before LUTTIG, MOTZ, and KING, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon,
Assistant Federal Public Defender, 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Unpublished opinions are not binding precedent in this circuit.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:

           David     Paschell   Shabazz      pled   guilty     without   a   plea

agreement to being a felon in possession of a firearm under 18

U.S.C. § 922(g).      Shabazz was sentenced to 96 months imprisonment

followed by three years of supervised release.            The district court

also specified, pursuant to this court’s recommendation in United

States v. Hammoud, 378 F.3d 426 (4th Cir. 2004) (order), opinion

issued by 381 F.3d 316, 353-54 (4th Cir.) (en banc), cert. granted

and   judgment   vacated,   125   S.    Ct.    1051   (2005),    an   identical

alternative sentence if the guidelines were not mandatory.

           On appeal, Shabazz cites Blakely v. Washington, 124 S.

Ct. 2531 (2004),* for the proposition that the court erred in

finding that an enhancement to the base offense level (for having

at least two prior felony convictions of either a crime of violence

or a controlled substance offense) applied to his case.                  We find

that this judicial finding falls within the prior conviction

exception, and, accordingly, there is no error. See Booker, 125 S.

Ct. at 750-51; Apprendi v. New Jersey, 530 U.S. 466, 476 (2000).

           We further find that because the alternative sentence the

district court pronounced (in the event the federal sentencing

guidelines    were   invalidated)      was    identical   to    the   mandatory

sentence imposed under the federal sentencing guidelines as they


      *
      Shabazz filed his opening brief shortly before the decision
in United States v. Booker, 125 S. Ct. 738 (2005), issued.     We
consider his appeal in light of Booker.

                                    - 2 -
existed at that time, any error resulting from the sentence imposed

by   the    district      court   was     harmless.     Accordingly,       we   affirm

Shabazz’s 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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