                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 05-4643



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

          versus


JAMAR BROOKS HAILEY,

                                              Defendant - Appellant.


Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. William L. Osteen, District
Judge. (CR-04-161)


Submitted:   May 15, 2006                  Decided:   July 12, 2006


Before MICHAEL and KING, Circuit Judges, and Joseph F. ANDERSON,
Jr., Chief United States District Judge for the District of South
Carolina, sitting by designation.


Affirmed by unpublished per curiam opinion.


Louis C. Allen III, Federal Public Defender, William S. Trivette,
Assistant Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Greensboro, North Carolina, for Appellant. Anna Mills
Wagoner, United States Attorney, Michael F. Joseph, Assistant
United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Greensboro, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

     Pursuant to his guilty plea, Jamar Brooks Hailey was convicted

of being a felon in possession of a firearm in violation of 18

U.S.C.   §§   922(g)(1)   and   924(a)(2).   In   determining   Hailey’s

sentence, the district court found that he qualified as an armed

career criminal under the Armed Career Criminal Act (“ACCA”), 18

U.S.C. § 924(e)(1).       The ACCA prescribes a minimum sentence of

fifteen years’ imprisonment. The district court, after considering

the advisory sentencing guidelines and the factors enumerated in 18

U.S.C. § 3553(a), imposed a sentence of 190 months’ imprisonment.

Hailey appeals his sentence, arguing that the district court erred

in sentencing him as an armed career criminal.       Finding no error,

we affirm.



                                    I.

     On February 1, 2004, a police officer noticed Hailey in a

parked car with an expired registration certificate in Southern

Pines, North Carolina.      When approached, Hailey admitted he was

smoking marijuana. The officer also found Hailey was in possession

of a firearm. A federal grand jury subsequently indicted Hailey in

the Middle District of North Carolina for possessing a firearm in

commerce after a felony conviction, in violation of 18 U.S.C. §§

922(g)(1) and 924(a)(2).        The federal indictment did not charge,

nor did Hailey stipulate, that he was an armed career criminal


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under the ACCA.      Hailey subsequently pled guilty to the charge of

felony possession of a firearm.

       In calculating the advisory sentencing guidelines range, the

district court found that Hailey qualified as an armed career

criminal, thereby enhancing Hailey’s base offense level to 30 with

a criminal history category of VI.                   A defendant qualifies as an

armed    career    criminal       if     he    has   at    least     “three    previous

convictions ... for a violent felony or serious drug offense, or

both, committed on occasions different from one another.” 18 U.S.C.

§ 924(e)(1). Hailey’s offense level of 30, when combined with his

criminal history category of VI, yielded an advisory sentencing

guidelines range of 180 to 210 months.                U.S.S.G. Sentencing Table,

Ch. 5, Pt. A.      The district court imposed a sentence of 190 months.

       Prior to sentencing, Hailey objected to his qualification as

an armed career criminal on two grounds: (1) that he did not have

the three predicate convictions for “a violent felony or serious

drug    offense,    or    both”    and    (2)     that    pursuant    to     Blakely    v.

Washington, 542 U.S. 296 (2004) and Shepard v. United States, 544

U.S. 13 (2005), elements of the ACCA must be charged in the

indictment and either found by the jury beyond a reasonable doubt

or admitted by the defendant.

       Regarding the first objection, the Presentence Report (“PSR”)

listed    Hailey's       three    adult       convictions    and     noted    that     his

predicate convictions rendered him an armed career criminal under


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the ACCA.    The PSR identified the three predicate convictions as

one felonious elude of arrest by motor vehicle and two felonious

common law robberies. Hailey, however, took exception to the first

of these three predicate convictions (eluding arrest by motor

vehicle) on the ground that it was not a violent felony for ACCA

purposes.    He asserted that because the maximum sentence to which

he was exposed for this conviction was only ten to twelve months’

imprisonment,      the    conviction     was    not    a   “crime    punishable       by

imprisonment for a term exceeding one year” under the ACCA.

     As to the second objection, Hailey argued that the indictment

failed to inform him that he faced ACCA punishments because it did

not (1) enumerate the predicate convictions; (2) specify whether

the predicate convictions met the elements of a “violent felony” or

“serious    drug   offense,”      or    (3)    allege      that    the    three    prior

convictions for qualifying felonies were committed on “occasions

different from one another.”             Hailey conceded at the sentencing

hearing    that    at    least   two   Circuits       have   ruled       against    this

objection.

     The district court overruled both of Hailey’s objections.

     Hailey now appeals his sentence, raising the same two pre-

sentence objections to his ACCA enhancement.                      We review de novo

whether a prior conviction qualifies as a predicate conviction

under 18 U.S.C. § 924(e).         See United States v. Williams, 326 F.3d

535, 537 (4th Cir. 2003).              We also review de novo whether the


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enhancement was unconstitutionally imposed as a matter of law. See

United States v. Thompson, 421 F.3d 278, 280-81 (4th Cir. 2005).



                                     II.

     Under the ACCA, a “violent felony” is any crime punishable for

a term exceeding one year that “(I) has as an element the use,

attempted use, or threatened use of physical force against the

person   of   another   or   (ii)   is   burglary,   arson,   or   extortion,

involves use of explosives, or otherwise involves conduct that

presents a serious potential risk of physical injury to another.”

18 U.S.C. § 924(e)(2)(B).       It is “often a question of law whether

a [prior] felony meets the statutory definition of a ‘violent

felony’” because violence is often inherent in the prior crime.

Thompson, 421 F.3d at 283–84 (internal quotation marks and citation

omitted).     Hailey argues that his prior conviction for eluding

arrest by motor vehicle does not qualify as a predicate conviction

under the ACCA.

     To the contrary, Hailey’s prior conviction satisfies both

requirements under the ACCA.         First, the crime charged (eluding

arrest by motor vehicle) is punishable by a prison term exceeding

one year even though Hailey was eligible to receive a sentence of

only ten to twelve months imprisonment. For ACCA purposes, lengths

of punishment “shall be determined in accordance with the law of

the jurisdiction in which the proceedings were held,” which in this


                                         5
case is North Carolina.            18 U.S.C. § 921(a)(20); see also United

States v. Lender, 985 F.2d 151, 156 (4th Cir. 1993).                      The relevant

question is whether any defendant charged with the crime could

receive a sentence of more than one year, not whether Hailey in

particular did or could have.                That is, the court must consider

“the maximum aggravated sentence that could be imposed for that

crime upon a defendant with the worst possible criminal history.”

United States v. Harp, 406 F.3d 242, 246 (4th Cir. 2005) (citing

United States v. Jones, 195 F.3d 205, 206–08 (4th Cir. 1999)).                         At

the    time   of    Hailey’s     conviction      in   2002,    North     Carolina     law

provided that felonious elude of arrest was a class H felony that

carried a maximum of thirty months’ imprisonment for defendants

with    prior      criminal      records.        N.C.   Gen.     Stat.    §    20-141.5

(1997)(speeding           to     elude      arrest);     N.C.      Gen.       Stat.     §

15A-1340.17(d)(1997)(felony              sentencing);      see     also       State    v.

Funchess, 141 N.C. App. 302, 309, 540 S.E.2d 435, 439 (N.C. 2000);

State v. Mullaney, 129 N.C. App. 506, 508, 500 S.E.2d 112, 114

(N.C. 1998).        Thus, the crime meets the first requirement for a

“violent felony” under the ACCA.

       The crime also meets the second requirement under the ACCA.

Although      it     is    not     among     the      crimes     enumerated      in     §

924(e)(2)(B)(ii), it satisfies the “otherwise” clause of this

provision: the offense in abstract--speeding by motor vehicle to

elude arrest--creates a serious potential risk of injury to others


                                             6
in the vehicle’s path.   It is an active crime that poses an obvious

risk of injury.   Cf. United States v. Hairston, 71 F.3d 115, 118

(4th Cir. 1995) (holding that felony escape from custody in North

Carolina constitutes a violent felony under ACCA given that the

“supercharged nature of events surrounding an escape” presents “an

immediate and substantial risk that the situation will escalate” to

one involving physical force and/or injury) (internal quotation

marks and citation omitted).   This holding is consistent with the

holdings in United States v. Jones, 195 F.3d 203 (4th Cir. 1999).

Accord United States v. Harp, 406 F.3d 242 (4th Cir. 2005).

     Accordingly, we conclude that Hailey's prior conviction for

felonious elude of arrest by motor vehicle qualifies as a predicate

conviction under the ACCA.



                                III.

     Hailey also alleges that his ACCA sentence violates his

constitutional rights under Blakely v. Washington, 542 U.S. 296

(2004) and Shepard v. United States, 544 U.S. 13 (2005).     Because

Hailey was sentenced after United States v. Booker, 543 U.S. 220

(2005), however, he cannot establish constitutional error.    Under

Booker, there is no Sixth Amendment error when a defendant is

sentenced under a non-mandatory guidelines scheme. Id. at 245-46;

see also United States v. Chau, 426 F.3d 1318, 1323-34 (11th Cir.

2005) (“[T]he use of extra-verdict enhancements in an advisory


                                  7
guidelines system is not unconstitutional” under Booker.) (internal

quotation marks and citation omitted); United States v. Martins,

413 F.3d 139, 152 (1st Cir. 2005) (“[T]he Sixth Amendment [under

Booker] is not violated simply because a judge finds sentencing

facts under the guidelines; rather, the error is only that the

judge did so pursuant to a mandatory guidelines system.”) (citing

United States v. Antonakopoulos, 399 F.3d 68, 75 (1st Cir. 2005)).

Pursuant to Booker's remedial scheme, the district court here

considered the advisory guidelines range as well as the factors set

forth in 18 U.S.C. § 3553(a) and selected a sentence within the

range that it considered reasonable.

       Even if Hailey had been sentenced under a mandatory guidelines

scheme, however, he could not show constitutional error under

Blakely     or    Shepard.   The   Supreme     Court      has   held    that   prior

convictions--more precisely the fact of prior convictions–-may be

used to enhance sentences even if those convictions have not been

found by the jury beyond a reasonable doubt.                      Apprendi v. New

Jersey,     530    U.S.   466,   490   (2000).    This    recidivism     exception

survives Booker intact.          Booker, 543 U.S. at 244; see also United

States v. Cheek, 415 F.3d 349, 352-53 (4th Cir. 2005) (“It is ...

clear that the Supreme Court continues to hold that the Sixth

Amendment (as well as due process) does not demand that the mere

fact   of   a     prior   conviction    used     as   a   basis   for   sentencing




                                         8
enhancement be pleaded in an indictment and submitted to a jury for

proof beyond a reasonable doubt.”).

        Applying this recidivism exception, we have held that ACCA

enhancements are constitutional under Booker.          Specifically, we

have held that sentencing courts, in addition to considering the

fact of prior convictions, can determine as a matter of law whether

these convictions meet the statutory definition of a “violent

felony” under 18 U.S.C. § 924(e) and U.S.S.G. § 4B1.1.               United

States v. Thompson, 421 F.3d 278, 283-87 (4th Cir. 2005) (finding

no Sixth Amendment error when judge, not jury, found that prior

convictions were predicates for ACCA enhancement because “fact of

prior    conviction[s]”   includes   “essential   components”   of    these

convictions, such as date of offense and whether offense meets

statutory definition of “violent felony”); Cheek, 415 F.3d at

351-53 (upholding constitutionality of ACCA enhancement).        Even if

Hailey had been sentenced under a mandatory guidelines scheme, he

could not demonstrate constitutional error.



                                     IV.

        For the foregoing reasons, we affirm Hailey’s 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


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