                              UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                              No. 04-4729



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

          versus


RANDALL EUGENE HILLIAN,

                                             Defendant - Appellant.


Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. William L. Osteen, District
Judge. (CR-04-41)


Submitted:   August 4, 2006             Decided:    December 19, 2006


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


Affirmed in part; vacated and remanded in part by unpublished per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


Ames C. Chamberlin, LAW OFFICES OF AMES C. CHAMBERLIN, Greensboro,
North Carolina, for Appellant. Anna Mills Wagoner, United States
Attorney, Robert A.J. Lang, Assistant United States Attorney,
Greensboro, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

          Randall Eugene Hillian appeals his conviction and 120-

month sentence imposed after a jury found him guilty of being a

convicted felon in possession of a firearm, 18 U.S.C. §§ 922(g)(1)

& 924(a)(2) (2000).     For the reasons stated below, we affirm

Hillian’s conviction, but vacate his sentence and remand for

resentencing.

          Hillian claims error in the district court’s refusal to

instruct the jury on the defense of justification in regard to his

possession of a firearm. To establish a justification defense, the

defendant must show that:   (1) he was under unlawful and present

threat of death or serious bodily injury; (2) he did not recklessly

place himself in a situation where he could be forced to engage in

criminal conduct; (3) he had no reasonable legal alternative (to

both the criminal act and the avoidance of the threatened harm);

and (4) there was a direct causal relationship between the criminal

action and the avoidance of the threatened harm.   United States v.

Perrin, 45 F.3d 869, 873-74 (4th Cir. 1995).   We find that Hillian

fails to establish all of the requisite elements of this defense.

          First, Hillian alleges that based on a heated argument

with his father and the fact that his father shot him in 1991, he

was “under an unlawful and present threat of death or serious

bodily injury.”   In United States v. Crittendon, 883 F.2d 326, 330

(4th Cir. 1989), this court held that the defendant was not


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entitled to an instruction on the justification defense when he

obtained a gun for protection after he was shot following death

threats   eight       months   earlier.       Id.        The    court   held     that

“generalized fears will not support the defense of justification.”

Id.    Based on a shooting that occurred in 1991 and the district

court’s   specific      finding     that   there    was    no     indication     that

Hillian’s father was going to get his gun at the time of the

altercation,     we    conclude     Hillian   at    best    faced    only   a    more

generalized fear, not an imminent threat or danger.                   We therefore

find   Hillian    failed       to   establish      the    first     prong   of   the

justification defense.

           Second, Hillian claims that he had no reasonable legal

alternatives, as his choices were to run unarmed from the scene,

and risk being shot in the back by his father, or remove the rifle

from the house to prevent his father from having access to the gun.

As the Supreme Court held in United States v. Bailey, 444 U.S. 394,

410 (1980), “if there was a reasonable, legal alternative to

violating the law, ‘a chance both to refuse to do the criminal act

and also to avoid the threatened harm’ the defense[] will fail.”

We find Hillian failed to avail himself of several reasonable

alternatives to the actions taken and conclude the district court

did not err when it declined to give a jury instruction on the

justification defense.




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           Hillian     further    contends       that,   based   on    Blakely   v.

Washington, 542 U.S. 296 (2004), the four-level enhancement applied

to his sentence, pursuant to U.S. Sentencing Guidelines Manual

(“USSG”)   §    2K2.1(b)(5)      (2003)    for    possessing     a     firearm   in

connection with the felony offense of “Assault with a Deadly Weapon

with Intent to Kill,” is unconstitutional because it was not

charged    in    the   indictment         or   admitted     to    by     Hillian.*

Nevertheless, a Sixth Amendment error occurs when the district

court imposes a sentence greater than the maximum permitted based

on facts found by a jury or admitted by the defendant.                      United

States v. Booker, 543 U.S. 220, 244 (2005).

           To ascertain whether the defendant’s sentence violated

his Sixth Amendment rights post-Booker, this court employs 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).                  Hillian’s

unenhanced base offense level was twenty-four.               Applying criminal

history category VI, Hillian’s sentencing range would be 100 to 125

months’ imprisonment.         See USSG Ch. 5, Pt. A.                 As Hillian’s


     *
      Because Hillian objected at sentencing based on Blakely,
Hillian preserved the constitutional issue. See United States v.
Rodriguez, 433 F.3d 411, 415 (4th Cir. 2006).      In addition, we
reject the Government’s argument that there were was no error as to
the calculation of Hillian’s offense level, based on his assent to
the accuracy of the presentence report. In United States v. Milam,
443 F.3d 382 (4th Cir. 2006), this court held that a failure to
object to the presentence report does not constitute an admission
of facts set forth in the report for the purposes of Booker.

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sentence does not exceed the maximum sentence authorized by the

facts he admitted, there is no Sixth Amendment violation.

     Hillian also challenges the use of prior convictions used to

calculate a criminal history category of VI.             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

Booker), cert. denied, 126 S. Ct. 640 (2005).             Thus, the district

court was not required to make any factual findings concerning

Hillian’s prior record or his status at the time of the instant

offenses, 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 find that

the district court did not violate Hillian’s Sixth Amendment rights

when it considered his legal status and prior convictions in

determining his sentence.

             Finally, Hillian contends that the district court erred

when it treated the guidelines as mandatory, in violation of


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Booker.    Because Hillian preserved this issue by objecting to the

presentence report on Blakely grounds, this court reviews for

harmless error.    Rodriguez, 433 F.3d at 415.       Under the harmless

error standard, this court "must reverse unless [it] find[s] this

constitutional error harmless beyond a reasonable doubt, with the

Government bearing the burden of proving harmlessness."              United

States v. Mackins, 315 F.3d 399, 405 (4th Cir. 2003) (citations

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

(discussing difference in burden of proving that error affected

substantial 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).

     The    district   court   imposed    a   sentence   of   120   months’

imprisonment.     The district court did not impose an alternate

sentence, nor did it announce what sentence it would have imposed

if the guidelines were treated as advisory.          Thus, the district

court’s application of the sentencing guidelines as mandatory was

error; the Government concedes statutory Booker error occurred and

that resentencing is appropriate.

            Accordingly, we affirm Hillian’s conviction, but vacate

his sentence and remand for resentencing consistent with Booker.

We further dismiss Hillian’s pro se motion to remand as moot.           We

dispense with oral argument because the facts and legal contentions




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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




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