                             UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                             No. 04-4372



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

          versus


REGINALD CUTTINO MELVIN,

                                             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-02-201-1)


Submitted:   July 15, 2005                 Decided:   August 9, 2005


Before MOTZ and KING, Circuit Judges, and HAMILTON, Senior Circuit
Judge.


Affirmed in part, vacated and remanded by unpublished per curiam
opinion.


Thomas N. Cochran, Assistant Federal Public Defender, Greensboro,
North Carolina, for Appellant. Anna Mills Wagoner, United States
Attorney, Lisa B. Boggs, 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Unpublished opinions are not binding precedent in this circuit.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:

            Reginald    Cuttino    Melvin    appeals    a    fifty-seven   month

sentence    imposed    following    his   guilty      plea   to   one   count   of

possession of a firearm after having been convicted of a crime

punishable by more than one year of imprisonment, in violation of

18 U.S.C. §§ 922(g)(1), 924(a)(2) (2000).

            In determining the sentencing range under the Sentencing

Guidelines,* the probation officer determined that Melvin’s base

offense level was fourteen pursuant to USSG § 2K2.1(a)(6).                    This

offense level was enhanced by two levels pursuant to USSG § 3C1.1,

based upon Melvin’s obstruction of justice by failing to completely

disclose financial information to the probation officer.                      As a

result of this failure, Melvin was also denied a reduction in

offense level for acceptance of responsibility.                   Melvin’s prior

convictions and the fact that he committed the instant offenses

while he was on probation from a previous conviction resulted in a

total of fifteen criminal history points, placing him in criminal

history    category    VI.   Melvin’s       offense    level   of   sixteen     and

criminal history category of VI resulted in a sentencing range of

forty-six to fifty-seven months of imprisonment.

            On appeal, Melvin asserts that his sentence violates the

Supreme Court’s holding in Blakely v. Washington, 542 U.S. 296

(2004). He contends that the obstruction of justice enhancement of


     *
      U.S. Sentencing Guidelines Manual (2001) (“USSG”).

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his offense level violated the Sixth Amendment because it was not

charged in the indictment, found by a jury, or admitted by Melvin.

In United States v. Booker,      125 S. Ct. 738 (2005), the Supreme

Court applied the rationale of Blakely to the federal sentencing

guidelines and held that the mandatory guidelines scheme that

provided for sentence enhancements based on facts found by the

court violated the Sixth Amendment.        Booker, 125 S. Ct. at 746-48,

755-56 (Stevens, J., opinion of the Court). The Court remedied the

constitutional violation by severing and excising the statutory

provisions that mandate sentencing and appellate review under the

guidelines, thus making the guidelines advisory.          Id. at 756-57

(Breyer, J., opinion of the Court).

           Subsequently, in United States v. Hughes, 401 F.3d 540,

546 (4th Cir. 2005), this court held that a sentence that was

imposed under the pre-Booker mandatory sentencing scheme and was

enhanced based on facts found by the court, not by a jury (or, in

a guilty plea case, admitted by the defendant), constitutes plain

error.   That error affects the defendant’s substantial rights and

warrants reversal under Booker when the record does not disclose

what discretionary sentence the district court would have imposed

under an advisory guideline scheme.         Hughes, 401 F.3d at 546-56.

We   directed   sentencing   courts   to    calculate   the   appropriate

guideline range, consider that range in conjunction with other

relevant factors under the guidelines and 18 U.S.C.A. § 3553(a)


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(West 2000 & Supp. 2005), and impose a sentence.          If the district

court imposes a sentence outside the guideline range, the court

should state its reasons for doing so.        Id. at 546.

            Because Melvin withdrew his objections to the sentencing

range of forty-six to fifty-seven months of imprisonment set forth

in the presentence report (“PSR”) and adopted by the district

court, we review the district court’s guideline calculation for

plain error.      United States v. Olano, 507 U.S. 725, 732 (1993);

Hughes, 401 F.3d at 547.      Under the plain error standard, Melvin

must show: (1) there was error; (2) the error was plain; and

(3) the error affected his substantial rights.        Olano, 507 U.S. at

732-34.   Even when these conditions are satisfied, we may exercise

our discretion to notice the error only if the error “seriously

affect[s] the fairness, integrity or public reputation of judicial

proceedings.”     Id. at 736. (internal quotation marks omitted).

            The obstruction of justice enhancement was based upon

Melvin’s failure to completely disclose his financial assets to the

probation officer during preparation of the PSR.          Melvin does not

contest the accuracy of the facts supporting the enhancement, but

merely argues it was improperly applied in his case.            The facts

supporting the enhancement were not charged in the indictment,

discussed at the plea hearing, or admitted by Melvin.             If this

enhancement were removed, Melvin’s total offense level would be

fourteen,   and   his   sentencing   range   would   be   thirty-seven   to


                                 - 4 -
forty-six months.        Because the fifty-seven-month sentence imposed

does not fall within the guideline range calculated without the

two-level     enhancement,     we     conclude   that    Melvin’s   sentence

constitutes plain error that affects his substantial rights and

requires resentencing pursuant to Booker and Hughes.

      Melvin also asserts that his Sixth Amendment rights were

violated in the computation of his criminal history category.                He

argues that the factual findings required to determine whether

particular convictions are countable and how many points are

assessed involve more than the mere fact of a prior conviction and

therefore are subject to the requirements of Blakely, essentially

arguing     that   the    prior     conviction   exception   laid      out   in

Almendarez-Torres v. United States, 523 U.S. 224 (1998), may no

longer be good law.        This argument is foreclosed by the Supreme

Court’s reaffirmation of the Almendarez-Torres prior conviction

exception in Booker.         See Booker, 125 S. Ct. at 756 (“Any fact

(other than a prior conviction) which is necessary to support a

sentence exceeding the maximum authorized by the facts established

by a plea of guilty or a jury verdict must be admitted by the

defendant or proved to a jury beyond a reasonable doubt.”).              While

Justice Thomas’s concurrence in Shepard v. United States, 125 S.

Ct.   1254,   1263-64     (2005),    expressed   doubt   about   the    future

viability of the exception, the exception is still good law.




                                      - 5 -
            Nor     does    the    application    of    the    prior   conviction

exception to Melvin raise any of the problems outlined in Shepard.

In Shepard, the Supreme Court instructed that Sixth Amendment

protections apply to disputed facts about a prior conviction.                  Id.

at 1262-63. Because no facts related to Melvin’s prior convictions

were disputed, the district judge’s determination of Melvin’s

criminal history did not violate the Sixth Amendment.                  Cf. United

States v. Washington, 404 F.3d 834, 843 (4th Cir. 2005) (finding

that    district     court’s      reliance   on   disputed     facts   about   the

defendant’s       prior    conviction      violated    the    defendant’s   Sixth

Amendment right to trial by jury).

            Melvin also asserts that counsel was ineffective in

failing to object to the obstruction of justice enhancement and the

district court’s failure to make the required factual findings to

support the imposition of a fine.               An allegation of ineffective

assistance should not proceed on direct appeal unless it appears

conclusively       from    the    record   that   counsel’s     performance    was

ineffective.       United States v. Richardson, 195 F.3d 192, 198 (4th

Cir. 1999).        Our review of the record leads us to conclude that

deficient performance is not conclusively apparent from the record.

We     therefore     decline      to   consider    Melvin’s     allegations    of

ineffective assistance of counsel, which he may assert in a motion

pursuant to 28 U.S.C. § 2255 (2000).




                                        - 6 -
          We accordingly affirm Melvin’s conviction, but vacate his

sentence and remand for resentencing.      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 IN PART,
                                              VACATED AND REMANDED




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