                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 09-4147


UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

             v.

RONALD CHRISTOPHER SANDERS,

                  Defendant - Appellant.


Appeal from the United States District Court for the District of
South Carolina, at Florence.   Terry L. Wooten, District Judge.
(4:08-cr-00621-TLW-1)


Submitted:    July 27, 2009                 Decided:   August 13, 2009


Before NIEMEYER, MICHAEL, and MOTZ, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Michael A. Meetze, Assistant Federal Public Defender, Florence,
South   Carolina;  Aileen   P.   Clare,   Research  and   Writing
Specialist, Columbia, South Carolina, for Appellant.    W. Walter
Wilkins, United States Attorney, Carrie A. Fisher, Assistant
United States Attorney, Florence, South Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

                  Ronald Christopher Sanders pled guilty pursuant to a

written plea agreement to possession of a firearm by a felon, in

violation of 18 U.S.C. § 922(g)(1) (2006).                                       The district court

determined         the        statutory           conditions         set     forth    in     the    Armed

Career Criminal Act (“ACCA”), see 18 U.S.C. § 924(e) (2006),

were satisfied and sentenced Sanders to the statutory mandatory

minimum       of       180    months’          imprisonment.               Finding    no     error,    we

affirm.

                  On appeal, Sanders’s counsel asserts that this court

should        apply          the     doctrine           of     constitutional          avoidance       in

construing the ACCA, thus requiring the Government to allege

prior    convictions               in    the      indictment         and    prove     them    beyond   a

reasonable             doubt.            Under       “[t]he          canon       of   constitutional

avoidance, . . . every reasonable construction must be resorted

to,     in    order          to     save      a    statute          from    unconstitutionality.”

Gonzalez          v.     Carhart,          550      U.S.       124,        153    (2007)     (internal

quotation marks and citation omitted).                                     However, it “does not

apply        if    a     statute         is       not        genuinely       susceptible       to     two

constructions.”                    Id.   at       154.         As    counsel      objected     to     the

Government’s failure to allege Sanders’s predicate offenses in

the indictment, this court’s review is de novo.                                            See United

States v. Hecht, 470 F.3d 177, 179 (4th Cir. 2006).



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            Sentencing        courts     are      required       to    calculate       the

applicable       advisory     Guidelines         range    based       on   appropriate

findings of fact.         Gall v. United States, 552 U.S. 38, __, 128

S. Ct. 586, 596 (2007).              The district court “may accept any

undisputed portion of the presentence report as a finding of

fact,” Fed. R. Crim. P. 32(i)(3)(A), and should evaluate the

sentencing factors based on the preponderance of the evidence,

see United States v. Harvey, 532 F.3d 326, 337 (4th Cir. 2008).

Moreover, as acknowledged by counsel, we specifically determined

in United States v. Cheek, 415 F.3d 349, 352-54 (4th Cir. 2005),

that prior convictions used as a basis for enhancement under the

ACCA need not be charged in the indictment nor proven beyond a

reasonable doubt.

            Nevertheless, counsel maintains that it is impossible

to   reconcile     the    pleading     requirements         of    Apprendi        v.   New

Jersey, 530 U.S. 466 (2000), with the Supreme Court’s decision

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

Counsel finds support for this argument from Justice Thomas, who

opined that the ACCA is unconstitutional as a result of the

Court’s    decision      in   Apprendi    and     its     progeny,     and   that      the

decision    in    Almendarez-Torres         is    no     longer   good     law.        See

Shepard v. United States, 544 U.S. 13, 26-28 (2005) (Thomas, J.,

concurring in part and concurring in the judgment).                              However,



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Justice Thomas’s opinion was not joined by a majority of the

Justices and is therefore of no precedential value.

             Equally unavailing is counsel’s contention that Dretke

v. Haley, 541 U.S. 386 (2004), invited the courts to consider

application     and    extension   of       Almendarez-Torres      through    the

doctrine of constitutional avoidance.               Dretke simply does not

stand for this proposition.        Moreover, because Almendarez-Torres

has not been overruled, it resolves the constitutional question

at   issue   here,     leaving   nothing      to   avoid.        Therefore,   the

district court properly sentenced Sanders under the ACCA.

             Accordingly, we affirm the judgment of the district

court.     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 in the decisional

process.



                                                                        AFFIRMED




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