                             UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                             No. 04-4317



UNITED STATES OF AMERICA,

                                                Plaintiff - Appellee,

          versus


DONALD N. HAYNES,

                                               Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Richard L. Williams, Senior
District Judge. (CR-03-286)


Submitted:   July 27, 2005                 Decided:   October 11, 2005


Before WILKINSON, MICHAEL, and MOTZ, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Frank W. Dunham, Jr., Federal Public Defender, Mary E. Maguire,
Assistant Federal Public Defender, Frances H. Pratt, Research and
Writing Attorney, Richmond, Virginia, for Appellant.       Paul J.
McNulty, United States Attorney, Michael J. Elston, Assistant
United States Attorney, Matthew C. Ackley, Special Assistant United
States Attorney, Robert M. Worster, III, Third-Year Law Student,
Richmond, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

             Donald N. Haynes pled guilty to possession of a firearm

by a convicted felon, 18 U.S.C. § 922(g)(1) (2000), and was

sentenced to a term of eighty-four months imprisonment.               Haynes

appeals his sentence.      Relying on Blakely v. Washington, 542 U.S.

296 (2004), and its progeny, he contends that the district court

erred in applying an adjustment for reckless endangerment pursuant

to   U.S.   Sentencing    Guidelines   Manual   §   3C1.2   (2003),   and   in

adopting the calculation of his base offense level and criminal

history     recommended   in   the   presentence    report.    Haynes   also

maintains that the court’s application of the reckless endangerment

adjustment was clearly erroneous. Finally, Haynes asserts that the

court erred in concluding that it lacked authority to depart

downward under USSG § 5K2.13, p.s. (Diminished Capacity).             For the

reasons explained below, we affirm the sentence.

             On July 7, 2003, police in Richmond, Virginia, responded

to a report of gunshots being fired.         Haynes was found just inside

the front door of his house with a gun in one hand and a bottle of

wine in the other hand.        While officers evacuated Haynes’ wife and

mother-in-law from the house, Haynes refused to give up the gun,

pointing it repeatedly at the officers and stating, “You will have

to take me because I’m not going back.” Haynes retreated upstairs,

where there was a small child.       After a stand-off lasting thirty to

forty-five minutes, Haynes’ mother persuaded him to surrender.


                                     - 2 -
Haynes had prior convictions for assault, unlawful wounding, and

possession of crack cocaine with intent to distribute, and a

history of mental illness.             He had run out of his prescribed

medication some time before and had not been able to obtain a new

supply.

           Without a written plea agreement, Haynes pled guilty to

possession of a firearm by a convicted felon.                     The probation

officer   recommended      a    base   offense   level    of     24    under   USSG

§ 2K2.1(a)(2), which applies when the defendant has two or more

prior convictions for either a crime of violence or a drug offense,

and added a two-level adjustment for reckless endangerment during

flight or preparation for flight under USSG § 3C1.2 because Haynes

had pointed his gun at the arresting officers and had endangered a

small child.     Haynes was in criminal history category V.                    His

guideline range was 84-105 months.

           At the sentencing hearing, the district court heard

testimony from Haynes’ family, one of the arresting officers, and

a psychiatrist who had evaluated Haynes at his attorney’s request.

The court determined that the adjustment for reckless endangerment

applied   and   declined       to   depart   downward    based    on   diminished

capacity because the offense involved violence or a serious threat

of violence.    The court imposed the minimum guideline sentence of

eighty-four months imprisonment.




                                       - 3 -
                Reckless Endangerment, USSG § 3C1.2

           Haynes     asserts   that    the    adjustment      for   reckless

endangerment   was    incorrectly    applied   because    he   did   not    act

willfully.     The   district   court’s     legal    interpretation    of    an

applicable guideline term is reviewed de novo, while its factual

findings are reviewed for clear error. United States v. Quinn, 359

F.3d 666, 679 (4th Cir. 2004).         Guideline section 3C1.2 provides

that, “[i]f the defendant recklessly created a substantial risk of

death or serious bodily injury to another person in the course of

fleeing from a law enforcement officer, increase by 2 levels.” The

term “reckless” is defined as conduct “in which the defendant was

aware of the risk created by his conduct and the risk was of such

a nature and degree that to disregard that risk constituted a gross

deviation from the standard of care that a reasonable person would

exercise in such a situation.”          USSG §§ C1.2, comment. (n.2),

2A1.4, comment. (n.1). “During flight” includes conduct that occurs

“in the course of resisting arrest.” USSG § 3C1.2, comment. (n.3);

see United States v. Campbell, 42 F.3d 1199, 1205-06 (9th Cir.

1994)   (reckless    endangerment   occurred    in   twelve-hour     standoff

during which defendant said he would not be taken and threatened to

kill anyone who tried to arrest him).          Here, the standoff lasted

thirty to forty-five minutes.       There was no evidence that Haynes’

condition prevented him from appreciating the danger to others his

conduct presented, and he had ample opportunity to surrender the


                                    - 4 -
gun. The district court found that Haynes’ conduct was “active and

willful as evidenced by [his] statement that he wasn’t going back

[to jail].”    We conclude that the district court did not clearly

err in finding that Haynes acted willfully and that the court

correctly applied the adjustment.



                               Booker1 Claims

            Because Haynes did not raise these issues in the district

court, our review is for plain error.          United States v. Harp, 406

F.3d 242, 247 (4th Cir. 2005).        To establish plain error, Haynes

must show that an error occurred, that the error was plain, and

that the error affected his substantial rights.          United States v.

Olano, 507 U.S. 725, 732 (1993); United States v. Hughes, 401 F.3d

540, 547-48 (4th Cir. 2005).          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

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

quotation marks and citation omitted).          To establish that a Sixth

Amendment error occurred in his sentencing, Haynes must show that

the district court imposed a sentence that exceeded the maximum

allowed based only on the facts he admitted.        Booker, 125 S. Ct. at


     1
        United States v. Booker, 125 S. Ct. 738 (2005).

                                   - 5 -
756 (“Any fact (other than a prior conviction) which is necessary

to support a sentence exceeding the maximum authorized by the facts

established by a plea of guilty or a jury verdict must be admitted

by the defendant or proved to a jury beyond a reasonable doubt”);

United States v. Hughes, 401 F.3d 540, 546-47 (4th Cir. 2005).



                       A.    Reckless Endangerment

            Haynes   did    not   admit   certain      facts    on   which    the

adjustment was based.          The indictment charged only that Haynes

unlawfully possessed a firearm after previously being convicted of

a felony.    At the guilty plea hearing, Haynes did not admit that he

pointed the gun at the officers or that he recklessly endangered

others.    Without the adjustment, and assuming a base offense level

of   24,   Haynes’   offense    level   would   have   been    24    before   the

reduction for acceptance of responsibility.            See United States v.

Evans, 416 F.3d 298, 300 n.4 (4th Cir. 2005) (holding that, to

determine whether sentence exceeded maximum permitted by facts

defendant admitted, appellate court should look to guideline range

based on admitted facts before any reduction for acceptance of

responsibility).      Because Haynes was in criminal history V, his

guideline range would have been 92-115 months.                 Haynes’ eighty-

four-month sentence did not exceed the maximum sentence allowed




                                    - 6 -
based on the facts he admitted.           Therefore, no Sixth Amendment

error occurred.   Id.2



                  B.     Enhanced Base Offense Level

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

a sentence may be enhanced based on the fact of a prior conviction.

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 the prior judicial record and falls

outside the Apprendi exception for prior convictions.            United

States v. Collins, 412 F.3d 515, 521-22 (4th Cir. 2005) (citing

Shepard v. United States, 125 S. Ct. 1254, 1263 (2005)) (internal

quotation omitted).      In Collins, as in Haynes’ case, the prior

convictions in question were possession of cocaine with intent to

distribute3 and unlawful wounding.         As in Collins, the court did

not need to make any fact findings about these convictions to

conclude that one was a crime of violence and the other was a


     2
      As in Evans, 416 F.3d at 300 n.4, Haynes cannot show error
even if we calculate his guideline range with a three-level
adjustment for acceptance of responsibility. A total offense level
of 21 and a criminal history category of V yields a guideline range
of 70-87 months. His sentence was within that range.
     3
      In Collins, the prior offense was possession of cocaine with
intent to distribute; Haynes’ prior offense was possession of
cocaine base with intent to distribute.

                                  - 7 -
controlled      substance      offense.        Collins,     412    F.3d    at    521-22.

Therefore, the enhancement of Haynes’ base offense level under

§ 2K2.1(a)(2) is within the Apprendi exception and does not violate

the Sixth Amendment or due process.



                                C. Criminal History

            Haynes asserts that the factual findings required to

determine whether particular convictions are countable and how many

points are assessed involve more than the mere fact of a prior

conviction      and    therefore       are   subject   to    the    requirements        of

Blakely.    In effect, he argues that the prior conviction exception

laid out in Almendarez-Torres v. United States, 523 U.S. 224

(1998), and reaffirmed in Apprendi, may no longer be good law.

This argument is foreclosed by the Supreme Court’s reaffirmation of

the prior conviction exception in Booker.                   See Booker, 125 S. Ct.

at   756   (“Any      fact    (other    than   a   prior    conviction)         which   is

necessary to support a sentence exceeding the maximum authorized by

the facts established by a plea of guilty or a jury verdict must be

admitted by the defendant or proved to a jury beyond a reasonable

doubt.”).       The exception is still good law.

            Nor       does    the   application      of     the    prior   conviction

exception to Haynes raise any of the problems outlined in Shepard.

Because    no    facts       related    to   Haynes’      prior    convictions      were

disputed, the district court judge’s determination of Haynes’


                                         - 8 -
criminal history did not violate the Sixth Amendment.              Cf. United

States v. Washington, 404 F.3d 834, 843 (4th Cir. 2005) (finding

that   district    court’s    reliance   on   disputed    facts    about    the

defendant’s prior breaking and entering conviction to determine

that it was a crime of violence violated the defendant’s Sixth

Amendment right to trial by jury).



             Authority to Depart for Diminished Capacity

            Haynes contends that the district court found that he

suffered from diminished capacity, but declined to depart out of a

mistaken belief that his offense involved actual violence or a

serious   threat   of   violence.     When    the   defendant     appeals   his

sentence,    the   district    court’s   refusal    to   depart    below    the

guideline range is not reviewable unless the court’s decision

resulted from a mistaken belief that it lacked authority to depart.

United States v. Shaw, 313 F.3d 219, 222 (4th Cir. 2002).             Because

Haynes argues that the district court failed to understand its

authority to depart, we review this issue de novo.

            Guideline section § 5K2.13 states that a departure may

not be made under this policy statement if:

       (1) the significantly reduced mental capacity was caused
       by the voluntary use of drugs or other intoxicants; (2)
       the facts and circumstances of the defendant’s offense
       indicate a need to protect the public because the offense
       involved actual violence or a serious threat of violence;
       (3) the defendant’s criminal history indicates a need to
       incarcerate the defendant to protect the public; or (4)
       the defendant has been convicted of an offense under

                                    - 9 -
     chapter 71, 109A, 110, or 117, of Title 18, United States
     Code.

            The district court held that Haynes’ conduct precluded a

departure because the facts and circumstances of his case involved

violence or a serious threat of violence and indicated a need to

protect the public.    The court was not mistaken in deciding that,

under the circumstances, it lacked authority to depart under

§ 5K2.13.

            For the reasons discussed, we affirm the sentence.   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




                               - 10 -
