                               UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                               No. 04-4788



UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee,

          versus


CHARLES MARQUISE AUDREY,

                                                 Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Graham C. Mullen, Chief
District Judge. (CR-03-128)


Submitted:   August 22, 2005                 Decided:   December 7, 2005


Before NIEMEYER, MICHAEL, and KING, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Mark P. Foster, Jr., NIXON, PARK, GRONQUIST & FOSTER, P.L.L.C.,
Charlotte, North Carolina, for Appellant. Gretchen C. F. Shappert,
United States Attorney, Robert J. Gleason, Assistant United States
Attorney, Charlotte, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

          Charles Marquise Audrey pled guilty to three counts of

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

U.S.C. § 922(g) (2000).   He was sentenced to forty-one months of

imprisonment on each count, to run concurrently.     For the reasons

that follow, we affirm.

          Audrey does not challenge his conviction.    Audrey claims

that the district court violated his Sixth Amendment rights by

enhancing his sentence based on facts not alleged in the indictment,

not admitted by Audrey, and not found by a jury beyond a reasonable

doubt, in violation of United States v. Booker, 125 S. Ct. 738

(2005).   Because Audrey preserved this issue by objecting to the

presentence report based upon   Blakely v. Washington, 542 U.S. 296

(2004), this court’s review is de novo.      See United States v.

Mackins, 315 F.3d 399, 405 (4th Cir. 2003) (“If a defendant has made

a timely and sufficient Apprendi[1] sentencing objection in the

trial court, and so preserved his objection, we review de novo.”).

When a defendant preserves a Sixth Amendment error, 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.”    Id. (citations omitted); see United

States v. White, 405 F.3d 208, 223 (4th Cir. 2005).




     1
      Apprendi v. New Jersey, 530 U.S. 466 (2000).

                                - 2 -
             In Booker, the Supreme Court held that the mandatory

manner in which the federal sentencing guidelines required courts

to impose sentencing enhancements based on facts found by the court

by a preponderance of the evidence violated the Sixth Amendment.

Id. at 746, 750 (Stevens, J., opinion of the Court).                  The Court

remedied the constitutional violation by severing two statutory

provisions, 18 U.S.C.A. § 3553(b)(1) (West Supp. 2005) (requiring

sentencing    courts   to    impose   a   sentence   within    the    applicable

guideline range), and 18 U.S.C.A. § 3742(e) (West 2000 & Supp. 2005)

(setting forth appellate standards of review for guideline issues),

thereby making the guidelines advisory.              See United States v.

Hughes, 401 F.3d 540, 546 (4th Cir. 2005) (citing Booker, 125 S. Ct.

at 756-67 (Breyer, J., opinion of the Court)).

             After   Booker,   courts     must   calculate    the    appropriate

guideline range, consider the range in conjunction with other

relevant factors under the guidelines and 18 U.S.C.A. § 3553(a), and

impose a sentence.          If a court imposes a sentence outside the

guideline range, the district court must state its reasons for doing

so.   Hughes, 401 F.3d at 546.        This remedial scheme applies to any

sentence imposed under the mandatory guidelines, regardless of

whether the sentence violates the Sixth Amendment.                   Id. at 547

(citing Booker, 125 S. Ct. at 769 (Breyer, J., opinion of the

Court)).




                                      - 3 -
          Here, the district court sentenced Audrey under the then—

mandatory federal sentencing guidelines and enhanced his base

offense level of fourteen by two levels because the offense involved

four firearms and an additional two levels because a firearm was

stolen.   The district court then applied a three-level adjustment

for acceptance of responsibility, thus placing Audrey’s total

offense level at fifteen.     Based on his criminal history category

of VI, Audrey’s guideline range was 41 to 51 months of imprisonment.

USSG Ch. 5, Pt. A (Sentencing Table).   The district court sentenced

him to 41 months in prison.

          Without the stolen firearm enhancement,2 and without the

reduction for acceptance of responsibility, see United States v.

Evans, 416 F.3d 298, 300 n.4 (4th Cir. 2005), Audrey’s offense level

would have been sixteen.    Audrey’s guideline range would thus have

been 46 to 57 months of imprisonment. USSG Ch. 5, Pt. A (Sentencing

Table).   Because that guideline range is higher than the 41 month

sentence Audrey received, the government has met its burden of

establishing that any Booker error is harmless.




     2
      Audrey does not challenge the enhancement for the number of
firearms involved. Nor would such a challenge change the outcome
of this appeal. Because the indictment to which Audrey pled guilty
described that the offense involved four firearms, the two-level
enhancement of his base offense level on account of the number of
firearms involved in his offense was properly based upon conduct to
which Audrey admitted.

                                - 4 -
          Accordingly, we affirm the district court’s judgment. 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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