                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 04-4090



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

          versus


EDDIE SWEENEY CHOICE,

                                             Defendant - Appellant.



         On Remand from the United States Supreme Court.
                       (S. Ct. No. 04-6882)


Submitted:   November 16, 2005            Decided:   January 6, 2006


Before MOTZ, KING, and GREGORY, Circuit Judges.


Opinion reinstated; sentence affirmed by unpublished per curiam
opinion.


Steven M. Hisker, Columbia, South Carolina, for Appellant. Alan
Lance Crick, Assistant United States Attorney, Greenville, South
Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

          This case is before the court on remand from the Supreme

Court.   We previously affirmed Eddie Sweeney Choice’s conviction.

United States v. Choice, No. 04-4090 (4th Cir. July 20, 2004)

(unpublished). The Supreme Court vacated our decision and remanded

Choice’s case to us for further consideration in light of United

States v. Booker, 125 S. Ct. 738 (2005).

          Choice’s attorney has filed a brief in accordance with

Anders v. California, 386 U.S. 738 (1967), in which he addresses

whether the district court violated Choice’s Sixth Amendment rights

by enhancing his sentence based on judicial fact-finding.   Counsel

concedes, however, that there are no meritorious issues for appeal.

Choice has filed a supplemental pro se brief also challenging his

sentence under Booker.

          Choice pled guilty, pursuant to a written plea agreement,

to one count of unlawful possession of a firearm by a convicted

felon, in violation of 18 U.S.C. § 922(g) (2000).   At sentencing,

the district court assigned a base offense level of 24, pursuant to

U.S. Sentencing Guidelines Manual § 2K2.1(a)(2), because Choice had

two prior felony convictions for violent crimes.     Specifically,

Choice was convicted in 2000, of Pointing and Presenting a Firearm

and in 1999, of Assault of a High and Aggravated Nature, both

felonies under South Carolina law.     Choice received a two-level

enhancement because the firearm was reported stolen. See USSG


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§ 2K2.1(b)(4).       After a three-level reduction for acceptance of

responsibility, Choice’s adjusted offense level was 23.                   Choice’s

criminal history category V yielded a guideline range of 84-105

months imprisonment.         The district court imposed a sentence at the

bottom of the range.

             On    appeal,   Choice’s    attorney    filed     an    Anders    brief

addressing whether the district court complied with Fed. R. Crim.

P. 11.     This court affirmed Choice’s conviction and sentence.                 On

January 24, 2005, the Supreme Court granted Choice’s petition for

writ of certiorari, vacated this court’s judgment and remanded to

this court for further consideration in light of United States v.

Booker, 543 U.S.          , 125 S. Ct. 738 (2005).

             On    remand,    Choice    argues    that    he    is   entitled    to

resentencing in light of Booker because his sentence was enhanced

based on facts not found by the jury.            Specifically, he argues that

his offense level was increased based on judicial fact-finding both

with respect to his prior felony convictions and the enhancement he

received for the stolen weapon.          Because Choice did not object on

either ground, this court’s review is only for plain error. United

States v. Evans, 416 F.3d 298, 300 (4th Cir. 2005).

             To establish a Sixth Amendment error during sentencing,

a defendant who entered a guilty plea must show that the district

court imposed a sentence exceeding the maximum allowed based only

on   the   facts    to   which   he   admitted.     Id.        However,   we    have


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recognized an exception to the general rule in that a district

court may enhance a sentence based on the “fact of a prior

conviction” regardless of whether or not it was admitted to by the

defendant or found by a jury.          See United States v. Thompson, 421

F.3d 278, 282, 283-86 (4th Cir. 2005) petition for cert. filed

U.S.L.W.      (U.S. Oct. 25, 2005) (No. 05-7266).            Such enhancement

will not constitute Sixth Amendment error if the facts necessary to

support the enhancement “inhere in the fact of conviction” rather

than being “extraneous to it.”          Id. at 283.

            Choice’s arguments regarding the calculation of his base

offense level are foreclosed by Thompson, because the district

court could determine from the judicial record of Choice’s prior

convictions that each qualified as a crime of violence.                       See

Shepard v. United States, 125 S. Ct. 1254, 1257, 1263 (2005)

(holding that sentencing court cannot look to police reports or

complaint   applications       to   determine   whether     prior   offense    is

generic burglary but may “examin[e] the statutory definition,

charging document, written plea agreement, transcript of plea

colloquy, and any explicit factual finding by the trial judge to

which the defendant assented” or “some comparable judicial record

of this information”); United States v. Cheek, 415 F.3d 349 (4th

Cir. 2005) (holding that the armed career criminal designation

based on prior convictions does not violate Booker), cert. denied,

___   U.S.L.W.   ___   (U.S.    Nov.   7,    2005)   (No.   05-6904);   United


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States v. Collins, 412 F.3d 515, 521-23 (4th Cir. 2005) (holding

that, when the facts are undisputed, the application of the career

offender    enhancement       falls    within        the   exception      for    prior

convictions).

            Choice    also    challenges       the    two-level     enhancement     he

received    because    the   firearm     was    reported      stolen.      See     USSG

§ 2K2.1(b)(4).        For purposes of determining Booker error, this

court    considers    the    guideline      range     based   on    the   facts    the

defendant     admitted      before    any   adjustment        for   acceptance      of

responsibility. United States v. Evans, 416 F.3d 298, 300 n.4 (4th

Cir. 2005).    Using this calculation with criminal history category

V, the guideline range would have been 92-115 months.                           Because

Choice’s sentence was below that range, he cannot show plain error.

            In accordance with Anders, we have thoroughly examined

the entire record for any other potentially meritorious issues and

have found none.         Accordingly, we reinstate our July 20, 2004

opinion and affirm Choice’s sentence after our reconsideration in

light of Booker.*      This court requires that counsel inform Choice,

in writing, of the right to petition the Supreme Court of the

United States for further review.                    If Choice requests that a

petition be filed, but counsel believes that such a petition would



     *
      We note that this court’s original opinion erroneously stated
that Choice was sentenced to 82 months imprisonment. Our review of
the record confirms that the district court actually imposed a
sentence of 84 months.

                                       - 5 -
be frivolous, then counsel may move in this court for leave to

withdraw from representation.   Counsel’s motion must state that a

copy thereof was served on Choice.      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.

                            OPINION REINSTATED; SENTENCE AFFIRMED




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