                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                  ___________

                                  No. 05-3063
                                  ___________

United States of America,              *
                                       *
            Appellee,                  *
                                       * Appeal from the United States
      v.                               * District Court for the
                                       * Western District of Arkansas.
Kevin D. Gladney,                      *
                                       *     [UNPUBLISHED]
            Appellant.                 *
                                  ___________

                             Submitted: March 13, 2006
                                Filed: June 15, 2006
                                 ___________

Before COLLOTON, HEANEY, and GRUENDER, Circuit Judges.
                          ___________

PER CURIAM.

       Kevin D. Gladney pled guilty to distributing five grams or more of cocaine
base, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B), and the district court1
imposed a sentence of 188 months’ imprisonment. Gladney appeals his sentence, and
we affirm.




      1
        The Honorable Jimm Larry Hendren, Chief Judge, United States District Court
for the Western District of Arkansas.
       At sentencing, the district court described how it would determine Gladney’s
sentence in light of United States v. Booker, 543 U.S. 220 (2005), noting that it was
required to calculate the guideline range “in the same way that it had in the past” and
“to not be a slave to [the guidelines], to not be required to follow them, but to simply
take them into account.” (Tr. at 41-42). The court concluded that Gladney was a
career offender within the meaning of USSG § 4B1.1, and that the advisory guidelines
range was 188 to 235 months’ imprisonment. The court then rejected Gladney’s
argument that because his criminal history was allegedly not typical of a career
offender, a more lenient sentence was warranted based on the factors in 18 U.S.C.
§ 3553(a). The court found that “the criminal history that I see here . . . does provide
support[] for the notion that the sentencing guidelines under all the circumstances are
reasonable in this particular case,” and further found that there was no justification for
going “well outside the advisory sentencing guidelines.” (Tr. at 57). The court
imposed a sentence of 188 months, which was at the bottom of the advisory range,
along with a fine of $15,000 and five years’ supervised release.

      On appeal, Gladney argues that the 188-month sentence is unreasonable with
regard to § 3553(a). Subsequent to Booker, district courts are required to calculate the
applicable guideline range as they did under the mandatory guidelines system, but
they are also to consider the other factors in § 3553(a), including the history and
characteristics of the defendant, in fashioning an appropriate sentence. United States
v. Haack, 403 F.3d 997, 1003 (8th Cir. 2005), cert. denied, 126 S. Ct. 276 (2005).
Gladney argues that the district court gave undue weight to the guidelines, and failed
to consider his personal characteristics, including his personal health concerns and
drug addiction, the medical condition of his mother, and the fact that he had only two
qualifying prior offenses.

      We conclude that the district court committed no legal error in its consideration
of the guidelines. The district court’s comments at sentencing indicate that it
understood the advisory nature of the guidelines and the factors it should consider in

                                           -2-
imposing a sentence. Gladney argues that his criminal history “barely” qualified him
as a career offender, and that the court erred by describing the career offender status
as something that it was “not empowered to overlook or cancel out.” (Tr. at 54). But
this comment does not demonstrate error; it was an accurate description of the district
court’s responsibility to calculate the applicable guideline range in the same manner
as it would have prior to Booker.

       Nor are we persuaded by Gladney’s argument that his borderline status as a
career offender rendered a guidelines sentence unreasonable. The advisory guidelines
sentence is presumptively reasonable, United States v. Tobacco, 428 F.3d 1148, 1151
(8th Cir. 2005), and there is nothing about Gladney’s offense or history that compels
a lesser sentence. Any defendant with two qualifying convictions might be said
“barely” to qualify as a career offender, but that alone surely does not make the
guidelines sentence unreasonable.

       Gladney’s record does not provide persuasive grounds for leniency. He was
convicted of aggravated assault in 1992 after he “fired shots on the day Kenneth
McKeown was killed,” and capital murder charges were reduced when “[t]he evidence
did not establish conclusively that McKeown was killed by Gladney’s shots.” (PSR
¶ 39). He was convicted of a third degree assault in 1996 after a complaint alleged
that he “punched victim Tonya Lee in the head several times.” (Id. ¶ 40). He was
convicted of possessing crack cocaine with intent to distribute it in 2000, was
sentenced to probation by a lenient state court, violated his probation, and failed to
appear for a probation revocation hearing. (Id. ¶ 42). And he committed the instant
offense while on probation. (Id. ¶ 46). The district court recognized that it had
authority to vary from the guidelines, but in light of the evidence concerning
Gladney’s criminal history, the court thought the guideline sentence was reasonable
“in this particular case.” (Tr. at 57). That conclusion is not unreasonable.




                                         -3-
       Gladney also argues that his Sixth Amendment rights were violated by the
judicial “fact-finding” necessary to impose an enhancement based on his status as a
career offender. We previously have rejected this argument, holding that the Sixth
Amendment is not violated by judicial determinations regarding the nature and
existence of a defendant’s prior convictions. United States v. Patterson, 412 F.3d
1011, 1015-16 (8th Cir. 2005).

      The judgment of the district court is affirmed.
                     ______________________________




                                        -4-
