                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 03-4864



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

          versus


DANIEL MEADOWS,

                                              Defendant - Appellant.


Appeal from the United States District Court for the District of
Maryland, at Baltimore. William D. Quarles, Jr., District Judge.
(CR-03-221)


Submitted:   November 30, 2005            Decided:   January 3, 2006


Before LUTTIG, WILLIAMS, and MOTZ, Circuit Judges.


Affirmed by unpublished per curiam opinion.


James Wyda, Federal Public Defender, Beth M. Farber, Assistant
Federal Public Defender, Martin G. Bahl, Staff Attorney, Baltimore,
Maryland, for Appellant.      Thomas M. DiBiagio, United States
Attorney, Charles J. Peters, Assistant United States Attorney,
Baltimore, Maryland, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

           Daniel Meadows pled guilty, pursuant to a plea agreement,

to one count of possession with the intent to distribute cocaine

base in violation of 21 U.S.C. § 841(a)(1) (2000).               He was

sentenced to 210 months’ imprisonment, followed by four years of

supervised release.    He appeals his sentence.

           Meadows contends that his North Carolina conviction for

possession with intent to deliver cocaine was not a felony offense

under Blakely v. Washington, 542 U.S. 296 (2004), because, without

aggravating factors, the maximum allowable sentence he could have

received under applicable state sentencing guidelines did not

exceed   twelve   months.   It   is   undisputed,   however,   that   the

statutory maximum for the offense of which Meadows was convicted

exceeded one year.     In light of this fact, Meadows’ argument is

foreclosed by our recent decision in United States v. Harp, 406

F.3d 242, 246 (4th Cir. 2005) (holding that United States v. Jones,

195 F.3d 205 (4th Cir. 1999), is still viable after Blakely and

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

that “a prior North Carolina conviction was for a crime punishable

by imprisonment for a term exceeding one year if any defendant

charged with that crime could receive a sentence of more than one

year” (internal citation and quotation marks omitted)). We find no

basis to distinguish this case from Harp, and accordingly conclude

the argument is without merit.


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           Meadows also claims the district court erred when it

enhanced his sentence using his two prior felony convictions that

were neither charged in his indictment nor admitted in his guilty

plea.   In Almendarez-Torres v. United States, 523 U.S. 224, 233-35

(1998), the Supreme Court held that 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 concluded that Almendarez-Torres was not overruled

by Apprendi or United States v. Booker, 125 S. Ct. 738 (2005), and

remains the law.     See United States v. Cheek, 415 F.3d 349 (4th

Cir. 2005); see also United States v. Sterling, 283 F.3d 216, 220

(4th Cir. 2002).   This argument is without merit.

           Finally, we consider whether the district court erred in

treating the sentencing guidelines as mandatory in determining

Meadows’ sentence.    Because Meadows did not raise an objection to

the application of the guidelines as mandatory before the district

court, this court reviews for plain error. United States v. White,

405 F.3d 208, 215 (4th Cir. 2005).

           In White, this court held that treating the guidelines as

mandatory was error and that the error was plain.    Id. at 216-17.

The court declined to presume prejudice, id. at 217-22, and held


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that the “prejudice inquiry, therefore, is . . . whether after

pondering all that happened without stripping the erroneous action

from the whole, . . . the judgment was . . . substantially swayed

by the error.”   Id. at 223 (internal quotation marks and citations

omitted).    To make this showing, a defendant must “demonstrate,

based on the record, that the treatment of the guidelines as

mandatory caused the district court to impose a longer sentence

than it otherwise would have imposed.”    Id. at 224.   Because the

record in White provided no nonspeculative basis suggesting that

the court would have sentenced the defendant to a lower sentence

had the court sentenced under an advisory guideline scheme, this

court concluded that the error did not affect the defendant’s

substantial rights.   Id. at 225.   Thus, we affirmed the sentence.

Id.

            In this case, during the sentencing hearing, the court

made comments suggesting that it considered itself constrained by

the then-mandatory guidelines range.     However, the comments were

equivocal, and the court did not explicitly state that it would

have given a lower sentence but for the guidelines.     Accordingly,

we find there is no nonspeculative basis for remanding the case to

the district court to determine whether Meadows was prejudiced by

the mandatory application of the guidelines.

            Accordingly, we affirm the judgment of the district

court.   We deny Meadows’ motion to remand.   We dispense with oral


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argument because the facts and legal contentions are adequately

presented in the material before the court and argument would not

aid the decisional process.



                                                         AFFIRMED




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