                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 04-4815



UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

          versus


SHANNON MICHAEL WADE,

                                              Defendant - Appellant.


Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. Frank W. Bullock, Jr.,
District Judge. (CR-04-119)


Submitted:   December 29, 2006            Decided:   January 31, 2007


Before NIEMEYER, WILLIAMS, and SHEDD, Circuit Judges.


Affirmed in part; vacated and remanded in part by unpublished per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


William S. Trivette, Assistant Federal Public Defender, Greensboro,
North Carolina, for Appellant. Angela H. Miller, Assistant United
States Attorney, Greensboro, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

              Shannon   Wade     appeals    his       fifty-four     month     sentence

imposed following his guilty plea to possession of a firearm by a

convicted felon, in violation of 18 U.S.C. § 922(g)(1) (2000).

Wade’s counsel filed a brief pursuant to Anders v. California, 386

U.S.   738    (1967),    and    the    Government      elected      not   to    file   an

answering brief.        Because the Supreme Court decided United States

v. Booker, 543 U.S. 220 (2005), after the parties filed their

briefs,      we   directed     the    parties    to    file   supplemental       briefs

addressing any issues implicated by Booker.                   After reviewing the

parties’      briefs    and     supplemental      briefs,      we    affirm      Wade’s

conviction but vacate his sentence and remand for resentencing in

light of Booker.

              First, Wade argues that his sentence was unconstitutional

because the district court used Wade’s prior convictions to apply

the recidivism enhancements under U.S. Sentencing Guidelines Manual

(USSG) § 4A1.1(a), (b), (c) (2004), and to calculate his base

offense level under USSG § 2K2.1.           Wade did not dispute the fact of

his prior convictions.          The fact of a prior conviction need not be

proven beyond a reasonable doubt.                 Almendarez-Torres v. United

States, 523 U.S. 224, 233-36, 243-44 (1998); United States v.

Cheek, 415 F.3d 349, 351-54 (4th Cir.) (reaffirming continuing

validity of Almendarez-Torres after United States v. Booker, 543

U.S. 220 (2005)), cert. denied, 126 S. Ct. 640 (2005).                         Thus, the


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district court was not required to make any factual findings

concerning Wade’s prior record, but could rely on “the conclusive

significance” of his record, see Shepard v. United States, 544 U.S.

13, 25 (2005), as set out in the presentence report.              See United

States v. Thompson, 421 F.3d 278, 285 (4th Cir. 2005) (sentencing

judge entitled to rely on undisputed information in presentence

report that “bears the earmarks of derivation from Shepard-approved

sources such as the indictments and state-court judgments from

[defendant’s] prior convictions”), cert. denied, 126 S. Ct. 1463

(2006). We conclude that the district court did not violate Wade’s

Sixth Amendment rights when it considered his prior convictions in

determining his sentence.

          Next, Wade contests the four-level enhancement under USSG

§ 2K2.1(b)(5) for possession of a firearm in connection with

another felony offense, possession with intent to sell and deliver

cocaine, and maintaining a dwelling for keeping a controlled

substance.     Wade   never   admitted    to   the   facts    underlying   the

enhancement.   Rather, these relevant facts were determined by the

probation officer, and adopted by the district court. Because Wade

objected at sentencing based on Blakely v. Washington, 542 U.S. 296

(2004), Wade preserved the constitutional issue.             United States v.

Rodriguez, 433 F.3d 411, 415 (4th Cir. 2006).

          A Sixth Amendment error occurs when the district court

imposes a sentence greater than the maximum permitted based on


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facts found by a jury or admitted by the defendant.                         Booker, 543

U.S.       at   244.       To    ascertain    whether    the   defendant’s     sentence

violated        his    Sixth      Amendment    rights     post-Booker,       this   court

considers the defendant’s “guideline range based on the facts he

admitted          before        adjusting     that   range        for    acceptance   of

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

(4th       Cir.    2005).         Therefore,     under    Evans,        discounting   the

adjustment for acceptance of responsibility, and without the four-

level enhancement for possession of a firearm in connection with

another felony offense, Wade’s offense level is twenty and his

guidelines         range        would   be    forty-one      to    fifty-one    months’

imprisonment.           Because this range is lower than the sentence

imposed upon Wade, we conclude that there was Sixth Amendment

error, and the error is not harmless.1                   In accordance with Anders,

we have reviewed the entire record for any other meritorious issues

and have found none.

                Accordingly, we affirm Wade’s conviction, but vacate his

sentence and remand to the district court for resentencing.2                           We


       1
      As we noted in United States v. Hughes, 401 F.3d 540, 545 n.4
(4th Cir. 2005), “[w]e of course offer no criticism of the district
judge, who followed the law and procedure in effect at the time” of
Wade's sentencing.
       2
      Although the sentencing Guidelines are no longer mandatory,
Booker makes clear that a sentencing court “must consult [the]
Guidelines and take them into account when sentencing” a defendant.
543 U.S. at 264.     On remand, the district court should first
determine the appropriate sentencing range under the Guidelines,
making all factual findings appropriate for that determination.

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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 IN PART




See Hughes, 401 F.3d at 546. The court should consider this
sentencing range along with the other factors described in 18
U.S.C.A. § 3553(a) (West 2000 & Supp. 2006), and then impose the
sentence. See Hughes, 401 F.3d at 546. If that sentence falls
outside of the Guideline range, the court should explain its
reasons for the departure as required by 18 U.S.C.A. § 3553(c)(2).
The sentence must be “within the statutorily prescribed range” and
“reasonable.” Id. at 547.

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