                               UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                               No. 04-4464



UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

          versus


JOHN CLARENCE GALLOWAY,

                                              Defendant - Appellant.



Appeal from the United States District        Court for the Middle
District of North Carolina, at Durham.         James A. Beaty, Jr.,
District Judge. (CR-03-457)


Submitted:   August 24, 2005            Decided:   September 29, 2005


Before WILLIAMS, MICHAEL, and TRAXLER, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Louis C. Allen, III, Federal Public Defender, Eric D. Placke,
Assistant Federal Public Defender, Greensboro, North Carolina, for
Appellant. Anna Mills Wagoner, United States Attorney, Lisa B.
Boggs, Assistant United States Attorney, Greensboro, North
Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            John Clarence Galloway pled guilty to possession of a

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

(2000).    He was sentenced to eighty-seven months of imprisonment,

followed by three years of supervised release.              Galloway appeals

his sentence.    We affirm.

            Galloway argues that the enhancements to his offense

level based on prior felony convictions for controlled substances

pursuant to U.S. Sentencing Guidelines Manual § 2K2.1(a)(2) (2003),

and the calculation of his criminal history category points based

on several prior convictions violated the Sixth Amendment because

the enhancements were based on facts that were not contained in the

indictment, found by the jury, or admitted by Galloway.

            Because Galloway did not object to his sentence in the

district court based on Blakely v. Washington, 542 U.S. 296 (2004),

this court’s review is for plain error.              Fed. R. Crim. P. 52(b);

United States v. Hughes, 401 F.3d 540, 547 (4th Cir. 2005).                   To

demonstrate    plain    error,    Galloway    must    establish    that    error

occurred, that it was plain, and that it affected his substantial

rights.     Hughes, 401 F.3d at 547-48.        If a defendant establishes

these   requirements,     the    court’s    “discretion    is   appropriately

exercised only when failure to do so would result in a miscarriage

of justice, such as when the defendant is actually innocent or the

error     seriously    affects   the   fairness,       integrity   or     public


                                    - 2 -
reputation    of    judicial    proceedings.”           Id.   at    555    (internal

quotation marks and citation omitted).

            In United States v. Booker, 125 S. Ct. 738 (2005), 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.                 125 S. Ct. at 746,

750.   The Court remedied the constitutional violation by severing

two statutory provisions, 18 U.S.C.A. §§ 3553(b)(1), 3742(e) (West

2000   &   Supp.    2005),   thereby     making    the    guidelines       advisory.

Hughes, 401 F.3d at 546.

            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)

(West 2000 & Supp. 2005), and impose a sentence.                          If a court

imposes a sentence outside the guideline range, the district court

must state its reasons for doing so.              Id.

            The district court may enhance a sentence based on the

fact of a prior conviction.              See Almendarez-Torres v. United

States, 523 U.S. 224, 244 (1998).              However, when the sentencing

court looks “beyond the charging document, the terms of a plea

agreement, the plea colloquy, the statutory definition, or any

explicit finding of the trial court to determine a fact about a

prior conviction,” then the finding has gone too far afield from


                                       - 3 -
the prior judicial record and falls outside the Almendarez-Torres

exception to the Booker holding.                   United States v. Collins, 412

F.3d    515,    521-22    (4th     Cir.    2005).         Galloway    was   previously

convicted of three separate prior felonies:                      sale and delivery of

cocaine and possession with intent to sell cocaine on February 3,

1997;   possession        with    intent    to     sell    and   deliver    cocaine    on

March 20, 2002; and possession of cocaine on April 17, 2002.                          The

district court was not required to make any factual findings

concerning these convictions to conclude that they were controlled

substance offenses.              We therefore conclude the enhancement of

Galloway’s offense level under USSG § 2K2.1(a)(2) did not violate

the Sixth Amendment.

               Galloway    also    challenges        the    continued      vitality    of

Almendarez-Torres in light of the Supreme Court’s decisions in

Apprendi v. New Jersey, 530 U.S. 466 (2000), and its progeny.                         The

argument is foreclosed by Circuit precedent.                     See United States v.

Cheek, 415 F.3d 349,                      (4th Cir. 2005); United States v.

Sterling, 283 F.3d 216, 220 (4th Cir.                 2002).

               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


                                           - 4 -
