                               UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                               No. 04-4755



UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

          versus


SHELTON LAKIE GRIFFIN,

                                              Defendant - Appellant.



Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. William L. Osteen,
District Judge. (CR-04-14)


Submitted:   August 19, 2005            Decided:   September 19, 2005


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


Affirmed by unpublished per curiam opinion.


Louis C. Allen, III, Federal Public Defender, William S. Trivette,
Assistant Federal Public Defender, Greensboro, North Carolina, for
Appellant.   Anna Mills Wagoner, United States Attorney, Kearns
Davis, 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Unpublished opinions are not binding precedent in this circuit.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:

             Shelton     Lakie     Griffin    was    convicted       by   a    jury    of

possession of a firearm by a convicted felon, in violation of 18

U.S.C.   §   922(g)      (2000).     Griffin       appeals,     claiming      that    the

evidence     was   insufficient      to   convict     and     that    his     120-month

sentence violates the Sixth Amendment.               We affirm.



                                          I

             Testimony at trial showed that on December 21, 2002,

Griffin and Everette Bostic engaged in target practice, using an

SKS rifle.         Later that evening, they went to the Level III

nightclub in Rockingham, North Carolina. Officers responded to a

report of shots being fired at the club.               Officer Rene Trevino was

the first officer to arrive.              He testified that he exited his

patrol car and walked roughly thirty yards towards the club.                           He

observed a blue car with no lights approaching him.                    A slim figure

was hanging out the passenger window with his back towards Trevino.

The passenger turned, aimed a rifle at Trevino, and fired. Trevino

returned fire.       The car accelerated, and the driver attempted to

strike Trevino, missing him by only a few feet.                      Trevino noticed

that the driver was heavy-set and wearing a white shirt.

             Detective Robert Heaton testified that he exited his car

upon   arriving     at    the    scene.       He    saw   the    blue     car,   which

accelerated, causing him to dive behind his car.                      After the car


                                       - 2 -
passed, Heaton got in his car and gave pursuit.                     The blue car

struck a tree.     Heaton saw the driver, a large black man in a white

shirt, exit the vehicle.          He also saw a passenger exit the car.

The driver, Bostic, was quickly apprehended.              The passenger fled.

              Deputy Claude Taylor, a K-9 officer, took his dog, K-9

Cindy, to the passenger side of the blue car so she could track the

passenger’s scent.        K-9 Cindy first found a rifle, then a single

boot, in some nearby woods.         Taylor turned the rifle and the boot

over to the police department.

              Officer Travis Bohman, who was a passenger in Detective

Heaton’s car, testified that he noticed that the passenger in the

car was wearing dark clothing.         When Bohman discovered Griffin in

the woods, Griffin was missing a boot that matched the one that K-9

Cindy had found, was wearing dark clothing, and had pieces of glass

in his hair and cuts on his face.

              After he was apprehended, Griffin admitted that he had

been a passenger in Bostic’s car.        Griffin denied having fired any

shots, however.     Griffin stipulated that he was a convicted felon.

              Following    his   conviction,    a     presentence    report   was

prepared.      The probation officer assigned Griffin a base offense

level of 24, U.S. Sentencing Guidelines Manual § 2K2.1(a)(2)

(2003), because Griffin had two previous felony convictions for

crimes   of    violence.     Four   levels     were    added   because   Griffin

possessed the firearm in connection with another felony offense,


                                     - 3 -
see USSG § 2K2.1(b)(5), three levels were added because he created

a substantial risk of serious bodily injury to a law enforcement

officer, see USSG § 3A1.2(b), and two levels were added for

obstruction of justice because Griffin fired in an attempt to avoid

arrest and for reckless endangerment during flight, see USSG

§ 3C1.2.

            With a total offense level of 33 and a criminal history

category of VI, Griffin’s guideline range was 235-293 months.

However, because the maximum term of imprisonment for his offense

was ten years, see 18 U.S.C. § 924(a)(2) (2000), the statutory

maximum of 120 months became the guideline sentence.                     See USSG

§ 5G1.1(a).

            Griffin objected under Blakely v. Washington, 542 U.S.

296 (2004), to the base offense level of 24, the increases under

USSG §§ 2K2.1(b)(5), 3A1.2(b), and 3C1.2, and his criminal history

category.    At sentencing, the district court overruled the Blakely

objections and declined to impose an alternative sentence.                     The

court sentenced Griffin to 120 months in prison.



                                       II

            Griffin    first   contends       that   there      was   insufficient

evidence to support his conviction.             In reviewing a sufficiency

claim, “[t]he relevant question is . . . whether, viewing the

evidence    in   the   light   most   favorable      to   the    government,   any


                                      - 4 -
rational trier of facts could have found the defendant guilty

beyond a reasonable doubt.”           United States v. Tresvant, 677 F.2d

1018,   1021    (4th   Cir.     1982).      We   consider     both    direct   and

circumstantial evidence “and allow the government the benefit of

all reasonable inferences from the facts proven to those sought to

be established.”       Id.     Witness credibility lies within the sole

province   of   the    jury,    and   the   court    will    not   reassess    the

credibility of testimony.        United States v. Saunders, 886 F.2d 56,

60 (4th Cir. 1989).            We will uphold a verdict “‘if there is

substantial evidence to support it.’”            United States v. Wills, 346

F.3d 476, 495 (4th Cir. 2003) (quoting Glasser v. United States,

315 U.S. 60, 80 (1942)).

           We conclude that the evidence was sufficient to convict

Griffin, who stipulated that he was a convicted felon. He admitted

that he was a passenger in Bostic’s vehicle. Only two persons--the

driver and passenger--were in the car.              Trevino saw the passenger

shoot a rifle from the car.           After the car struck the tree, both

the driver and the passenger exited the car.                The driver, Bostic,

was apprehended immediately.             K-9 Cindy, who was tracking the

passenger’s scent, located a rifle that was the same type that

Griffin had used at target practice the day before.                  The dog also

alerted to a boot that was the mate to the one Griffin was wearing

when Bohman found him in the woods outside the nightclub.                 When he




                                      - 5 -
was apprehended, Griffin was wearing dark clothing, just as the

passenger in Bostic’s car was.



                                  III

             Griffin contends that his sentence violates the Sixth

Amendment.     First, he claims that his base offense level should

have been 14 instead of 24 because the jury did not find that he

committed the offense after having previously been convicted of two

crimes of violence.    See USSG § 2K2.1(a).     Because he raised this

issue below, our review is de novo.       See United States v. Mackins,

315 F.3d 399, 405 (4th Cir. 2003).       Second, Griffin objects to his

placement in criminal history category VI, contending that he

belonged in category I.    Our review of this claim, raised for the

first time on appeal, is for plain error.         See United States v.

Olano, 507 U.S. 725, 732 (1993).

          With respect to criminal history, Griffin contends 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.        He argues that, even if

the prior conviction exception of Almendarez-Torres v. United

States, 523 U.S. 224 (1998), is still good law, it must be narrowly

applied, limited to the fact of a prior conviction, and not

extended to include any fact about a prior conviction.


                                 - 6 -
             In Shepard v. United States, 125 S. Ct. 1254 (2005), the

Supreme Court instructed that Sixth Amendment protections apply to

disputed facts about a prior conviction that are not evident from

“the conclusive significance of a prior judicial record.”      Id. at

1262-63.    Here, Griffin did not contest any facts about his prior

convictions used to arrive at his criminal history score; rather,

his is a purely legal argument.     Therefore, the district court did

not consider any facts Griffin did not admit, and the court’s

determination of his criminal history did not violate the Sixth

Amendment.     See United States v. Collins, 412 F.3d 515 (4th Cir.

2005).

             Just as Griffin did not contest any facts supporting his

criminal history score, he did not contest facts about the two

convictions identified in the presentence report as predicate

crimes of violence warranting the increase to base offense level

24.      For the reasons discussed above, there was no error in

treating those convictions as undisputed and accordingly assigning

the base offense level.

             An offense level of 24 and a criminal history category of

VI results in a guideline range of 100-125 months.            Because

Griffin’s sentence of 120 months does not exceed the maximum of

this unenhanced guideline range, there was no Sixth Amendment




                                 - 7 -
violation.   See United States v. Evans, 416 F.3d 298 (4th Cir.

2005).*



                                IV

          We accordingly affirm.     We dispense with oral argument

because the facts and legal contentions are adequately presented in

the material before the court and argument would not aid the

decisional process.



                                                           AFFIRMED




     *
      The district court increased the base offense level pursuant
to USSG §§ 2K2.1(b)(5), 3A1.2(b), and 3C1.2.      These increases,
based solely on judge-found facts, were impermissible under the
Sixth Amendment. No remand for resentencing based on these errors
is required, however, because Griffin’s 120-month sentence does not
exceed the maximum sentence possible under the unenhanced guideline
range of 100-125 months.

                              - 8 -
