                               UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                               No. 04-5026



UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee,

          versus


CARL ANTHONY MCDOUGALD,

                                                 Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. James C. Fox, Senior
District Judge. (CR-04-24)


Submitted:   January 4, 2006                 Decided:   February 7, 2006


Before WILKINSON, GREGORY, and DUNCAN, 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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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:

          Carl Anthony McDougald pled guilty to being a felon in

possession of a weapon in violation of 18 U.S.C. § 922(g) (2000).

McDougald was sentenced to the statutory mandatory minimum term as

an armed career criminal, under 18 U.S.C.A. § 924(e)(1) (West Supp.

2005), to one-hundred-eighty months of imprisonment.    On appeal,

McDougald alleges that he should be resentenced in light of the

Supreme Court’s opinion in United States v. Booker, 543 U.S. 220,

125 S. Ct. 738 (2005).   For the reasons that follow, we affirm.

          McDougald challenges the district court’s determination

that he is an armed career criminal, citing Blakely v. Washington,

542 U.S. 296 (2004), and Booker as support for this argument.

Because McDougald preserved this issue by timely objecting to the

presentence report based upon Blakely, our review is de novo.   See

United States v. Mackins, 315 F.3d 399, 405 (4th Cir. 2003) (“If a

defendant has made a timely and sufficient Apprendi[*] sentencing

objection in the trial court, and so preserved his objection, we

review de novo.”).   When a defendant preserves a Sixth Amendment

error, “we must reverse unless we find this constitutional error

harmless beyond a reasonable doubt, with the Government bearing the

burden of proving harmlessness.” Id. (citations omitted); see also

United States v. White, 405 F.3d 208, 223 (4th Cir.) (discussing

difference in burden of proving that error affected substantial


     *
      Apprendi v. New Jersey, 530 U.S. 466 (2000).

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rights under harmless error standard in Fed. R. App. P. 52(a), and

plain error standard in Fed. R. App. P. 52(b)), cert. denied, 126

S. Ct. 668 (2005).

               In Booker, the Supreme Court held that the mandatory

manner in which the federal sentencing guidelines required courts

to impose sentencing enhancements based on facts found by the court

by a preponderance of the evidence violated the Sixth Amendment.

125 S. Ct. at 746, 750.                The Court remedied the constitutional

violation      by    severing       two    statutory     provisions,        18    U.S.C.A.

§§ 3553(b)(1), 3742(e) (West 2000 & Supp. 2005), thereby making the

Guidelines advisory.           United States v. Hughes, 401 F.3d 540, 546

(4th    Cir.    2005).         After      Booker,    courts     must    calculate        the

appropriate Guideline range, consider the range in conjunction with

other   relevant          factors   under    the    Guidelines       and    18    U.S.C.A.

§ 3553(a) (West 2000 & Supp. 2005), and impose a sentence.                              If a

court imposes a sentence outside the Guideline range, the district

court must state its reasons for doing so.                     Id.

               McDougald’s      claim      that    the   district      court     erred    in

sentencing him as an armed career criminal is foreclosed by United

States v. Thompson, 421 F.3d 278 (4th Cir.), petition for cert.

filed   (Oct.       25,    2005)    (No.    05-7266),     in   which       we    held   that

sentencing courts may rely on prior convictions to invoke the

enhancement provided by § 924(e)(1), even if the prior convictions

were not charged in the indictment or found by a jury, so long as


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no facts extraneous to the fact of conviction need be decided.             Id.

at 282-83.         McDougald does not dispute the fact of the prior

convictions or identify any “extraneous facts” that are relevant to

this case.      We therefore conclude that no constitutional error

occurred in this case.

             McDougald   also   challenges   the    continued   validity    of

Almendarez-Torres v. United States, 523 U.S. 224, 244 (1998), in

light   of   the    Supreme   Court’s   decisions   in   Apprendi,   and   its

progeny.     The argument is foreclosed by Circuit precedent.              See

United States v. Cheek, 415 F.3d 349 (4th Cir.), cert. denied, 126

S. Ct. 640 (2005); United States v. Sterling, 283 F.3d 216, 220

(4th Cir. 2002).

             Finally, McDougald alleges that the district court erred

by considering the Sentencing Guidelines as mandatory.           This claim

fails because, as discussed above, his sentence was not enhanced as

a result of the Guidelines.         He was sentenced to the statutory

mandatory minimum as an armed career criminal.             Furthermore, the

district court announced an identical alternative sentence in the

event the Guidelines were found to be unconstitutional.

             Accordingly, we affirm McDougald’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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