                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 04-5078



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

          versus


KEVIN THOMAS MCNEILL,

                                              Defendant - Appellant.



Appeal from the United States District Court for the District of
Maryland, at Baltimore. Benson Everett Legg, Chief District Judge.
(CR-03-483-L)


Submitted:   January 12, 2006             Decided:   March 31, 2006


Before WIDENER and GREGORY, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


Harvey Greenberg, Towson, Maryland, for Appellant.         Rod J.
Rosenstein, United States Attorney, Bonnie S. Greenberg, Assistant
United States Attorney, Stephen Ruckman, Law Clerk, OFFICE OF THE
UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

     Kevin McNeill (McNeill) appeals his sentence following his

guilty plea to one count of armed bank robbery and aiding and

abetting the same, 18 U.S.C. §§ 2, 2113(a), (d), (f).     We affirm.

     McNeill pled guilty, pursuant to a plea agreement (the Plea

Agreement), during the time intervening between the Supreme Court’s

issuance of Blakely v. Washington, 542 U.S. 296 (2004), and United

States v. Booker, 543 U.S. 220 (2005).    With one exception, the

Plea Agreement provided that McNeill waived his rights to challenge

his conviction and/or sentence on appeal.      The sole exception is

that McNeill did not waive his right to make an appellate challenge

to his sentence based upon the ground that the United States

Sentencing    Guidelines   (USSG    or   the     Guidelines)    were

unconstitutional.

     At sentencing, also during the time intervening between the

issuance of Blakely and Booker, the district court determined that

McNeill qualified to be sentenced as a career offender under USSG

§ 4B1.1,1 resulting in a total offense level of 31 (offense level


     1
      In relevant part, USSG § 4B1.1 provides:

     (a)   A defendant is a career offender if (1) the
           defendant was at least eighteen years old at the
           time . . . [of] the instant offense of conviction;
           (2) the instant offense of conviction is a felony
           that is either a crime of violence or a controlled
           substance offense; and (3) the defendant has at
           least two prior felony convictions of either a
           crime of violence or a controlled substance
           offense.

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34 minus three levels for acceptance of responsibility, see USSG §

3E1.1) and a criminal history category of VI.2                This combination

resulted in a sentencing range of 188 to 235 months’ imprisonment.

The district court sentenced McNeill to 188 months’ imprisonment.

In the event the Supreme Court struck down the career offender

Guideline      as    unconstitutional,      the   district   court    imposed     an

alternative sentence of 130 months’ imprisonment, which represented

the low-end of the applicable sentencing range if McNeill had not

been sentenced as a career offender under USSG § 4B1.1.                         With

respect to this alternative sentence, the district court expressly

declared:           “[T]he   alternative    sentence   is    stated    under    the

assumption that the career offender sentence goes by the wayside in

a retroactive way.”          (J.A. 121).

       On appeal, McNeill first challenges as unenforceable the

appellate waiver provisions of the Plea Agreement to the extent

such       provisions    bar   him   from    challenging     his     sentence    on

nonconstitutional grounds.           According to McNeill, the government’s

sole discretion under USSG § 3E1.1(b) to move for an additional



       (b)    . . . A career offender’s criminal history category
              in every case under this subsection shall be
              Category VI.

USSG § 4B1.1.
       2
      Indeed, the Plea Agreement expressly provided: “The parties
agree that your client is a career offender, and therefore his
offense level is 34, Criminal History Category VI, pursuant to
U.S.S.G. § 4B1.1.” (J.A. 62).

                                       - 3 -
one-level     reduction    in     his    offense     level,    if    he   assisted

authorities    in   the   investigation         or   prosecution     of   his   own

misconduct by timely notifying authorities of his intention to

enter a plea of guilty, caused him to involuntarily agree to the

appellate waiver provisions.            See United States v. Johnson, 410

F.3d 137, 151 (4th Cir.) (“A waiver has no binding effect if the

defendant   did     not   enter    into    it    knowingly     and    voluntarily

. . . .”), cert. denied, 126 S. Ct. 461 (2005).               We have thoroughly

reviewed the record, including the transcript of McNeill’s plea

colloquy, and find his express agreement to all provisions of the

Plea Agreement to be knowing and voluntary.              Accordingly, we hold

that, with the exception of challenging his sentence on the ground

that the Guidelines are unconstitutional, McNeill is barred from

challenging his sentence on appeal.

     The only appellate challenge to his sentence that McNeill has

not waived is his argument that his 188-month sentence should be

vacated and his case remanded for resentencing to the 130-month

alternative sentence because, in sentencing him under the career

offender Guideline, the district court treated the Guidelines as

mandatory in violation of the Sixth Amendment.                McNeill’s argument

is without merit.

     A district court may enhance a sentence based on the “fact of

a prior conviction,” United States v. Thompson, 421 F.3d 278, 282

(4th Cir.), petition for cert. filed, __U.S.L.W.__ (U.S. Oct. 25,


                                        - 4 -
2005) (No. 05-7266), regardless of whether it was admitted to by

the defendant or found by a jury, so long as the facts necessary to

support the enhancement “inhere in the fact of conviction” rather

than being “extraneous to it,” id. at 283.                Facts necessary to

support a sentencing enhancement inhere in the fact of conviction

rather than being extraneous to it so long as they come from “the

charging   document,   the    terms    of    a   plea   agreement,   the    plea

colloquy, the statutory definition, or any explicit finding of the

trial judge to which the defendant assented to determine a disputed

fact about a prior conviction.” United States v. Collins, 412 F.3d

515, 521 (4th Cir. 2005).

     Here, McNeill does not dispute that he qualified as a career

offender under USSG § 4B1.1 without violating the Sixth Amendment’s

jury-trial guarantee.        Indeed, McNeill expressly states in his

appellate brief that he does not seek vacature of his sentence on

the ground that the indictment failed to charge the elements of

being a career offender under USSG § 4B1.1 or on the ground that a

jury did not find such elements beyond a reasonable doubt. Rather,

on appeal, he seeks resentencing on the sole ground that the

Guidelines are no longer mandatory.

     McNeill   is   entitled   to     no    appellate    relief   because   the

district court’s treatment of the Guidelines as mandatory at

McNeill’s sentencing “is non-constitutional [error],” Collins, 412

F.3d at 524, and McNeill effectively waived his rights to mount an


                                    - 5 -
appellate challenge to his sentence based upon non-constitutional

error.

      For the reasons stated herein, we affirm McNeill’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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