                             UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                             No. 04-4722


UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

           versus


GEORGE C. COOKE,

                                              Defendant - Appellant.


Appeal from the United States District Court for the Southern
District of West Virginia, at Bluefield. David A. Faber, Chief
District Judge. (CR-04-13)


Argued:   May 27, 2005                      Decided:   June 23, 2005


Before WILKINS, Chief Judge, and WIDENER and WILKINSON, Circuit
Judges.


Affirmed by unpublished per curiam opinion.


ARGUED: Jonathan David Byrne, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Charleston, West Virginia, for Appellant. Joshua Clarke
Hanks, Assistant United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Charleston, West Virginia, for Appellee.      ON
BRIEF: Mary Lou Newberger, Federal Public Defender, Megan J.
Schueler, Assistant Federal Public Defender, Charleston, West
Virginia, for Appellant.   Kasey Warner, United States Attorney,
Charleston, West Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

          George C. Cooke appeals a sentence imposed by the district

court following his guilty plea to one count of possession of an

unregistered shotgun with a barrel shorter than 18 inches.                  See

26 U.S.C.A. § 5861(d) (West 2002).          Finding no error, we affirm.


                                       I.

          At his sentencing hearing, Cooke argued unsuccessfully that

the   federal     sentencing   guidelines   were    unconstitutional      under

Blakely v. Washington, 124 S. Ct. 2531 (2004), and that imposition

of    a    sentence   under   the   guidelines   would   violate    his   Sixth

Amendment rights.         The district court calculated Cooke’s Offense

Level to be 21, based in part on a finding that Cooke had been

convicted of a drug felony prior to committing the present offense,

see   United     States   Sentencing   Guidelines    Manual   §    2K2.1(a)(3)

(2003). The court also calculated his Criminal History Category to

be IV, yielding a prescribed guideline range of 57-71 months.

Utilizing this range, the district court imposed a 66-month prison

term to be followed by three years of supervised release. Pursuant

to our recommendation in United States v. Hammoud, 378 F.3d 426

(4th Cir. 2004) (en banc), vacated and remanded, 125 S. Ct. 1051

(2005), the district court also announced an alternative sentence--

treating the guidelines as advisory rather than mandatory--of 72

months imprisonment to be followed by three years of supervised



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release.    Cooke objected to the announcement of an alternative

sentence.


                                        II.

       Cooke argues that his 66-month sentence ran afoul of Blakely

and United States v. Booker, 125 S. Ct. 738 (2005), because it

exceeded the maximum authorized by the facts admitted pursuant to

his guilty plea.    Specifically, he challenges the increases in his

guideline range based on the findings of the district court that he

had a prior felony conviction for a controlled substance offense

and that he had a Criminal History Category of IV.

       The constitutional rule applicable to Cooke’s claims was

expressed in Apprendi v. New Jersey, 530 U.S. 466, 490 (2000):

“Other than the fact of a prior conviction, any fact that increases

the penalty for a crime beyond the prescribed statutory maximum

must be submitted to a jury, and proved beyond a reasonable doubt.”

The prior-conviction exception in this rule is based on the pre-

Apprendi decision of Almendarez-Torres v. United States, 523 U.S.

224 (1998). While the Court in Apprendi questioned the correctness

of   Almendarez-Torres,    it     did    not    overrule    the   decision,   see

Apprendi, 530 U.S. at 489-90, nor has it done so since.

       The district court ruled that its findings regarding Cooke’s

past   offenses   fell   within    the       prior-conviction     exception   and

therefore did not violate the Apprendi rule.               Cooke does not argue

that those findings fall outside the prior-conviction exception.

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Cf. United States v. Washington, 404 F.3d 834, 842 (4th Cir. 2005)

(finding plain and prejudicial error when “the sentencing court

relied on facts outside of the prior indictment and resolved a

disputed fact ‘about a prior conviction’” (quoting Shepard v.

United States, 125 S. Ct. 1254, 1262 (2005) (plurality opinion))).

Rather, he maintains that the exception no longer exists because

Almendarez-Torres is no longer good law.          We disagree.

     Regardless of whether we believe that the overruling of

Almendarez-Torres may be imminent, see Shepard, 125 S. Ct. at 1264

(Thomas, J., concurring in part and concurring in the judgment)

(“Almendarez-Torres ... has been eroded by this Court’s subsequent

Sixth Amendment jurisprudence, and a majority of the Court now

recognizes that Almendarez-Torres was wrongly decided.”), until

such overruling occurs, we must follow the decision, see Agostini

v. Felton, 521 U.S. 203, 237 (1997) (reserving “prerogative of

overruling its own decisions” even if ruling “appears to rest on

reasons   rejected   in   some   other    line   of   decisions”   (internal

quotation marks omitted)); West v. Anne Arundel County, 137 F.3d

752, 757 (4th Cir. 1998) (“Our task ... is not to predict what the

Supreme Court might do but rather to follow what it has done.”).

We therefore reject Cooke’s claim.


                                   III.

     Cooke also maintains that the district court lacked statutory

authority to impose a term of supervised release because Blakely

                                     4
rendered the Sentencing Reform Act invalid in its entirety.                  We

disagree.

     The Supreme Court held in Booker that the only provisions of

the Act rendered invalid by Blakely were those provisions that

mandated sentencing and appellate review in conformance with the

guidelines.    See Booker, 125 S. Ct. at 764 (severing and excising

18   U.S.C.A.        §     3553(b)(1)        (West     Supp.     2005)      and

18 U.S.C.A. § 3742(e) (West 2000 & Supp. 2005) and declaring that

“[w]ith these two sections excised ... the remainder of the Act

satisfies     the    Court’s   constitutional        requirements”).        The

provisions of the Act authorizing the imposition of supervised

release terms remained intact.


                                      IV.

     Cooke finally argues that the district court violated his

Fifth and Sixth Amendment rights by announcing an alternative

sentence pursuant to our recommendation in Hammoud.

     Because Cooke has not been ordered to serve the alternative

72-month sentence, any claim he may have on appeal with regard to

that sentence is not yet ripe.              In any event, even were we to

determine     that   the   district     court    erred   in    announcing    an

alternative sentence pursuant to our recommendation in Hammoud,

that error would be harmless in light of our affirmance of the 66-

month sentence actually imposed.



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                                   V.

    In   sum,   for   the   foregoing   reasons,   Cooke’s   sentence   is

affirmed.


                                                                AFFIRMED




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