                                 UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                                 No. 04-4179



UNITED STATES OF AMERICA,

                                                   Plaintiff - Appellee,

          versus


JIMMY JONES,

                                                  Defendant - Appellant.


                                 No. 04-4183



UNITED STATES OF AMERICA,

                                                   Plaintiff - Appellee,

          versus


JIMMY JONES,

                                                  Defendant - Appellant.


Appeals from the United States District Court for the District of
South Carolina, at Florence.    Terry L. Wooten, District Judge.
(CR-02-1017)


Submitted:     August 22, 2005                 Decided:   October 4, 2005


Before MOTZ and TRAXLER, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.


William F. Nettles, IV, Assistant Federal Public Defender,
Florence, South Carolina, for Appellant.     Rose Mary Parham,
Assistant United States Attorney, Columbia, South Carolina, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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




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PER CURIAM:

          In these consolidated appeals, Jimmy Jones appeals his

conviction and sentence for one count of possession of a firearm by

a convicted felon in violation of 18 U.S.C. §§ 922(g)(1), 924(e)

(2000).   Jones contends the district court erred enhancing his

sentence under 18 U.S.C. § 924(e) (2000), despite his argument that

with respect to one of the predicate convictions, he did not

voluntarily waive his right to counsel. Jones further contends the

use of prior convictions to enhance his sentence is improper under

the rule announced in Blakely v. Washington, 542 U.S. 296 (2004),

when the convictions were not charged in the indictment, proven to

a jury or admitted by the defendant.   Finding no error, we affirm.

          The presentence investigation report (“PSR”) noted Jones

was an armed career criminal withing the meaning of U.S. Sentencing

Guidelines Manual § 4B1.4(b)(3)(A) (2002).   Accordingly, his base

offense level was raised to 34.   The PSR noted a 1993 conviction

for burglary, a 1994 conviction for burglary and a 1998 state

conviction for possession with intent to distribute powder cocaine.

At sentencing, Jones argued the cocaine conviction could not be

used to determine his sentence because it was uncounseled and he

did not voluntarily waive counsel.     After taking evidence, the

district court found Jones did not meet his burden establishing he

did not voluntarily waive counsel.




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           While   a   defendant   may     challenge   at   sentencing   the

validity of a prior conviction used to enhance a sentence on the

ground that he was denied counsel, Custis v. United States, 511

U.S. 485, 495-96 (1994), he bears the “heavy” burden of showing the

prior conviction is invalid. United States v. Jones, 977 F.2d 105,

110, 111 (4th Cir. 1992).    The determination of whether counsel is

waived is reviewed de novo.    United States v. Hondo, 366 F.3d 363,

365 (4th Cir. 2004).

           Here, Jones had to overcome the presumption that the

state court informed him of his right to counsel as it was required

by statute to do.       Parke v. Raley, 506 U.S. 20, 28-34 (1992)

(holding a presumption of regularity attaches to final judgments

and makes it appropriate for defendant to have burden of showing

irregularity of prior plea).       We agree with the district court in

its findings and find Jones did not meet his burden of proof.

           Jones further contends the use of prior convictions not

charged in the indictment, found by a jury or admitted by the

defendant, to increase a sentence is improper under the rule

announced in Blakely v. Washington, 542 U.S. 296 (2004).             Jones

challenges the continued viability of Almendarez-Torres v. United

States, 523 U.S. 224, 233-35 (1998).           Jones did not raise this

issue in the district court.        Consequently, we review for plain

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

(citing United States v. Olano, 507 U.S. 725, 731-32 (1993)).            To


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meet this plain error standard:            (1) there must be an error;

(2) the error must be plain; and (3) the error must affect

substantial rights.        Olano, 507 U.S. at 732-34.        If the three

elements of the plain error standard are met, we may exercise our

discretion to notice error 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.”             United States v.

Hughes, 401 F.3d 540, 555 (4th Cir. 2005) (internal quotation marks

and citation omitted).

              In   Almendarez-Torres,   the   Supreme    Court   held   the

government need not allege in its indictment and need not prove

beyond reasonable doubt that a defendant had prior convictions for

a district court to use those convictions for purposes of enhancing

a sentence.        Although the opinion in Apprendi v. New Jersey, 530

U.S. 466 (2000), expressed some uncertainty regarding the future

vitality of Almendarez-Torres, we have subsequently confirmed that

Almendarez-Torres was not overruled by Apprendi, and remains the

law.       United States v. Cheek, 415 F.3d 349,        , 2005 WL 1669398,

*3-4 (4th Cir. 2005).*



       *
      We note the holding in Shepard v. United States, 125 S. Ct.
1254 (2005), does not support Jones’ claim. The district court did
not look beyond the record of conviction to determine facts about
the conviction. Once the court determined Jones voluntarily waived
counsel, the fact of conviction was all that was necessary for it
to be used to increase the offense level.

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          Accordingly, we affirm the conviction and 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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