                                                        United States Court of Appeals
                                                                 Fifth Circuit
                                                               F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                     May 16, 2005

                                                            Charles R. Fulbruge III
                                                                    Clerk
                            No. 04-30668
                          Summary Calendar




UNITED STATES OF AMERICA,

                                      Plaintiff-Appellee,

versus

EARNEST MILLER,

                                      Defendant-Appellant.



                        --------------------
           Appeal from the United States District Court
               for the Eastern District of Louisiana
                        No. 2:03-CR-91-ALL-N
                        --------------------




Before DAVIS, SMITH, and DENNIS, Circuit Judges.

PER CURIAM:*

     Earnest Miller appeals his conviction and sentence, following

a jury trial, for the following offenses: possession of a firearm

after having been convicted of a felony, in violation of 18 U.S.C.

§§ 922(g)(1) and 924(e) (count 1); possession of an indeterminate

quantity of cocaine base with intent to distribute, in violation of


     *
       Pursuant to 5TH CIR. R. 47.5, the court has determined that this
opinion should not be published and is not precedent except under the
limited circumstances set forth in 5TH CIR. R. 47.5.4.
                               No. 04-30668
                                    -2-

21 U.S.C. § 841(a) (count 2); and possession of a firearm during a

drug-trafficking crime, in violation of 18 U.S.C. § 924(c)(1). The

district court imposed the following sentence, enhanced under the

Armed    Career   Criminal   Act     (“ACCA”)   and   armed-career-criminal

guideline, 18 U.S.C. § 924(e) and U.S.S.G. § 4B1.4: concurrent

prison terms of 262 months as to count 1 and 240 months as to count

2; a consecutive 60-month prison term as to count 3; and concurrent

supervised release terms of, respectively, five, three, and five

years.

     For the first time on appeal, Miller argues that his sentence,

as   determined     pursuant    to     the   sentencing    guidelines,   is

unconstitutional under Blakely v. Washington, 124 S. Ct. 2531

(2004).1   He contends that the offense level for his cocaine-base-

possession charge, which was determined by the district court to

have been 26, should have been only 12, the offense level for a

minimum quantity of cocaine base.

     In Apprendi v. New Jersey, 530 U.S. 466, 490 (2000), the

Court held that, “‘[o]ther than the fact of a prior conviction, any

fact that increases the penalty beyond the prescribed statutory

maximum must be submitted to a jury, and proved beyond a reasonable



     1
       Miller also emphasizes that, in Booker v. United States, No. 04-
104, which was pending in the Supreme Court when Miller filed his briefs
herein, that Court was considering whether to extend Blakely to the
federal sentencing guidelines. A decision was issued in Booker after
briefing had been completed here. United States v. Booker, 125 S. Ct.
738 (2005).
                             No. 04-30668
                                  -3-

doubt.’”   In Blakely, 124 S. Ct. at 2537, the Court held that “the

‘statutory maximum’ for Apprendi purposes is the maximum sentence

a judge may impose solely on the basis of the facts reflected in

the jury verdict or admitted by the defendant.”

     In Booker, 125 S. Ct. at 756, the Court extended Blakely        to

the federal guidelines, holding that “[a]ny fact (other than a

prior conviction) which is necessary to support a sentence au-

thorized by the facts established by a plea of guilty or a jury

verdict must be admitted by the defendant or proved beyond a rea-

sonable doubt.”   The Court excised 18 U.S.C. § 3553(b)(1) of the

Sentencing   Reform   Act,   rendering    the   guidelines   effectively

advisory rather than mandatory.       Id. at 764-65.      Under Booker,

district courts are still required to consider the guidelines, and

Booker applies to this direct appeal.       See id. at 757-69.

     A challenge under Blakely and Booker that is raised for the

first time on appeal, however, is reviewable only for plain error.

United States v. Mares, 402 F.3d 511, 520-21 (5th Cir. 2005),

petition for cert. filed (U.S. Mar. 31, 2005) (No. 04-9517).       Even

if the district court plainly erred by enhancing Miller’s guideline

sentence based on factors not submitted to the jury, Miller cannot

prevail on appeal unless he shows that the error affected his

“substantial rights.”   Id. at 521.      This requires him to show that

the district court would have reached a “significantly different

result” under an advisory sentencing regime.        Id.   Miller cannot
                               No. 04-30668
                                    -4-

make that showing, because at trial he stipulated that cocaine base

was found in his home, and the stipulation referred directly to a

police    report    showing   that   6.0   grams   of   the   substance    was

recovered.

      Miller also contends, for the first time on appeal, that his

ACCA sentence is unconstitutional under Blakely.              In Almendarez-

Torres v. United States, 523 U.S. 224, 235 (1998), the Court held

that a prior conviction is a sentencing factor under 8 U.S.C. §

1326(b)(2) and not a separate element of a criminal offense.

Apprendi left Almendarez-Torres intact; as noted above, Apprendi

states that the “fact of a prior conviction” need not be submitted

to a jury.    See Apprendi, 530 U.S. at 489-90.

      The holding in Booker applies to “[a]ny fact (other than a

prior conviction).”      Booker, 125 S. Ct. at 756.         Accordingly, the

line of authority from Almendarez-Torres to Booker does not require

that a prior conviction be treated the same way as other factors

that affect a sentence.       Even if Booker did render Miller’s ACCA

and   §   4B1.1    sentence   unconstitutional,     there     is   not   enough

information in the record to justify a conclusion that the district

court plainly erred in determining that Miller’s armed-robbery

convictions were sufficiently separate that they qualified as the

“two prior felony convictions” necessary to support the armed-

career-criminal enhancements. See Mares, 402 F.3d at 521; U.S.S.G.

§ 4B1.1.
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                          -5-

The conviction and sentence is AFFIRMED.
