                             UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                             No. 04-4301



UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

          versus


DARRICK T. FERGUSON,

                                              Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria.  Claude M. Hilton, Chief
District Judge. (CR-03-310)


Submitted:   July 29, 2005                 Decided:   August 19, 2005


Before LUTTIG, MOTZ, and GREGORY, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Paul P. Vangellow, PAUL P. VANGELLOW, P.C., Falls Church, Virginia,
for Appellant.      Paul J. McNulty, United States Attorney,
Jonathan L. Fahey, Richard D. Cooke, Special Assistant United
States Attorneys, Alexandria, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

             Darrick T. Ferguson was convicted by a jury of conspiracy

to distribute 50 grams or more of cocaine base, in violation of 21

U.S.C. § 846 (2000), and possession with intent to distribute 5

grams   or    more    of    cocaine   base,      in    violation      of    21   U.S.C.

§ 841(a)(1) (2000). He was sentenced to 360 months of imprisonment

and   ten    years    of    supervised      release.         On    appeal    Ferguson,

challenging only his sentence, claims that he was improperly

sentenced under the Federal Sentencing Guidelines in light of

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

Booker, 125 S. Ct. 738 (2005).

             The     district    court    found       that   the    career   offender

enhancement,       U.S.    Sentencing     Guidelines         Manual   §    4B1.1(b)(A)

(2003), applied to Ferguson.          Although the district court resolved

and denied objections to the quantity of drugs attributed and

possession     of    a     firearm,   and    sustained        an   objection     to   an

obstruction of justice enhancement, the career offender designation

determined the applicable offense level and resulting guideline

range. Because the maximum penalty for Ferguson’s offense was life

imprisonment, see 21 U.S.C. § 841, the applicable offense level was

37.   USSG § 4B1.1(b)(A).        Under the career offender guideline, the

criminal history category is VI, resulting in the guideline range

of 360 months to life imprisonment.               USSG Ch.5, Pt. A.           Ferguson

received a 360-month sentence.                On appeal, Ferguson does not


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contest that he qualified for career offender status; instead, he

broadly challenges the designation on Booker grounds.1

           In United States v. Harp, this court, applying the plain

error standard, found that, even if the district court committed

plain error when it determined that defendant was a career offender

without the elements of that designation having been charged in an

indictment, this court would not exercise its discretion to correct

that error.     406 F.3d 242, 247 (4th Cir. 2005).             In Almendarez-

Torres v. United States, 523 U.S. 224 (1998), the Supreme Court

held that “the government need not allege in its indictment and

need not prove beyond reasonable doubt that a defendant had prior

convictions for a district court to use those convictions for

purposes   of   enhancing   a   sentence.”      Although      the   opinion   in

Apprendi   v.   New   Jersey,   530    U.S.   466   (2000),   expressed   some

uncertainty regarding the future vitality of Almendarez-Torres,

this court has subsequently clarified that Almendarez-Torres was

not overruled by Apprendi, and remains the law.            See United States

v. Sterling, 283 F.3d 216, 220 (4th Cir. 2002); see generally

Shepard v. United States, 125 S. Ct. 1254 (2005) (discussing

documents that a sentencing court may consider in determining

whether a prior conviction is considered a violent felony).                   We



     1
      Ferguson’s brief contests that the district court determined
the offense level based on facts not found by the jury, but does
not specifically attack the propriety of the career offender
designation.

                                      - 3 -
therefore   conclude    that    the    district   court   did   not    err   in

designating Ferguson as a career offender and Ferguson’s sentence

did not violate the Sixth Amendment.

            We therefore affirm Ferguson’s convictions and sentence.2

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




      2
       Ferguson does not contest his convictions.

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