                               UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                               No. 04-4329



UNITED STATES OF AMERICA,

                                                 Plaintiff - Appellee,

          versus


ORLANDO EUCEDA VALLE,

                                                Defendant - Appellant.



Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. Frank W. Bullock, Jr.,
District Judge. (CR-03-354)


Submitted:   August 10, 2005                 Decided:   August 30, 2005


Before NIEMEYER, WILLIAMS, and DUNCAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Thomas N. Cochran, Assistant Federal Public Defender, Greensboro,
North Carolina, for Appellant. Anna Mills Wagoner, United States
Attorney, Paul A. Weinman, Assistant United States Attorney,
Greensboro, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Orlando Euceda Valle was indicted on September 29, 2003,

in   a    seven-count    indictment    charging   drug,   firearm,   and

counterfeiting offenses.        He pled guilty, pursuant to a plea

agreement, to three counts of the indictment:         Count One, dealing

in $2800 in counterfeit bills, in violation of 18 U.S.C.A. § 473

(West Supp. 2005); Count Four, distribution of eighty-three grams

of cocaine hydrochloride, in violation of 21 U.S.C.A. § 841(a)(1),

(b)(1)(C) (West 1999 & Supp. 2005); and Count Seven, carrying a

firearm while possessing with intent to distribute 300 grams of

cocaine hydrochloride, in violation of 18 U.S.C. § 924(c)(1)(A)

(2000).

            In   the    presentence   report,   the   probation   officer

calculated a base offense level of twenty-four pursuant to U.S.

Sentencing Guidelines Manual § 2D1.1(c)(8) (2003).         A three-level

adjustment for acceptance of responsibility, under USSG § 3E1.1,

resulted in a total offense level of twenty-one.          The probation

officer found a total of twelve criminal history points, yielding

a criminal history category of V.       The resulting sentencing range

was seventy to eighty-seven months.       USSG Ch. 5, Pt. A (Sentencing

Table).    Count Seven had a mandatory minimum consecutive sentence

of five years.    18 U.S.C. § 924(c)(1)(A)(i); USSG § 2K2.4(a).       No

objections were made concerning the sentence computation.




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              The district court sentenced Valle to seventy months on

Count One, with a concurrent sentence of seventy months on Count

Four, and a consecutive sixty month sentence on Count Seven.                 He

imposed concurrent three-year periods of supervised release on each

count.    The district court directed that Valle be released to an

immigration detainer at the completion of the custodial sentence.

Valle appeals.

              Citing Blakely v. Washington, 542 U.S. 296 (2004), Valle

asserts that his sentence is unconstitutional because it was based

on a fact, i.e., drug quantity, not alleged in the indictment,

found    by   a    jury   beyond   a   reasonable   doubt,   or   admitted   by

defendant.        Valle did not raise the issue in the district court.

Consequently, the claim is reviewed for plain error. Fed. R. Crim.

P. 52(b); United States v. Hughes, 401 F.3d 540, 547 (4th Cir.

2005).

              To meet the plain error standard:        (1) there must be an

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

substantial rights.        United States v. Olano, 507 U.S. 725, 732-34

(1993).   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.”




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Hughes, 401 F.3d at 555 (internal quotation marks and citation

omitted).

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

Supreme Court held that the mandatory manner in which the federal

sentencing    guidelines      required    courts    to   impose   sentencing

enhancements based on facts found by the court by a preponderance

of the evidence violated the Sixth Amendment.               Id. at 746, 750

(Stevens, J., opinion of the Court).               The Court remedied the

constitutional violation by severing two statutory provisions, 18

U.S.C.A. § 3553(b)(1) (West Supp. 2005) (requiring sentencing

courts to impose a sentence within the applicable guideline range),

and 18 U.S.C.A. § 3742(e) (West 2000 & Supp. 2005) (setting forth

appellate standards of review for guideline issues), thereby making

the guidelines advisory.       Hughes, 401 F.3d at 546 (citing Booker,

125 S. Ct. at 756-67 (Breyer, J., opinion of the Court)).

            After   Booker,    courts    must   calculate   the   appropriate

guideline range, consider the range in conjunction with other

relevant factors under the guidelines and 18 U.S.C.A. § 3553(a)

(West 2000 & Supp. 2005), and impose a sentence.              If a sentence

outside the guideline range is imposed, the district court must

state its reasons for doing so.           Hughes, 401 F.3d at 546.      This

remedial scheme applies to any sentence imposed under the mandatory

guidelines, regardless of whether the sentence violates the Sixth

Amendment.    Id. at 547 (citing Booker, 125 S. Ct. at 769 (Breyer,


                                   - 4 -
J., opinion of the Court)).         However, as Valle raised no claim

based on the mandatory nature of the guidelines, this issue is not

before us.

          Valle   claims    that    the    district     court   violated   the

constitution at sentencing by attributing to him a drug quantity

greater than that charged in Count Four of the indictment.              While

Count Four charged Valle with possession of eighty-three grams, the

total amount referred to in all seven counts, and considered by the

probation officer and district court as relevant conduct, was 434

grams.

          However,   we    find    that    no   Sixth   Amendment   violation

occurred here. “To establish that a Sixth Amendment error occurred

in his sentencing, [the defendant] must show that the district

court imposed a sentence exceeding the maximum allowed based only

on the facts that he admitted.”           United States v. Evans, __ F.3d

__, __, 2005 WL 1705531, at *1 (4th Cir. July 22, 2005).                    In

pleading guilty Valle clearly admitted that he distributed eighty-

three grams of cocaine on one occasion and that he possessed with

intent to distribute 300 grams on another occasion while carrying

a firearm.   Therefore, the 300 grams cited in Count Seven, the

firearms count, can properly be considered as relevant conduct in

computing the guideline range.            USSG § 1B1.3, comment. (n.2).

Doing so results in a base offense level of twenty-two, USSG

§ 2D1.1(c)(9), with a sentencing range of seventy-seven to ninety-


                                   - 5 -
six months.* The seventy-month sentence Valle actually received is

lower than this applicable guideline range.       As the district

court’s sentence can be reached only on considering facts admitted

by Valle, he has suffered no Sixth Amendment violation and this

claim lacks merit.   See Blakely v. Washington, 542 U.S. 296, __,

124 S. Ct. 2531, 2537 (2004) (“[T]he statutory maximum . . . 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.”)

          Valle also asserts that his criminal history category is

unconstitutional in that it increases his punishment based on

uncharged facts not found by a jury or admitted by him.   He argues

that the criminal history computation generally is based on more

than the mere fact of prior convictions, as only certain types of

convictions are countable, and facts such as sentence length, time

frame, and relatedness must be determined under certain guidelines

provisions. Again, this alleged error was not preserved before the

district court, and we review for plain error.   Olano, 507 U.S. at

731-32.

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

(1996), the Supreme Court held that the government need not allege



     *
      As in Evans, for purposes of determining whether a Sixth
Amendment violation occurred, the sentence imposed on Valle is
compared against the guideline range that was properly determined
before that range was adjusted to account for the three-point
reduction in offense level Valle received for acceptance of
responsibility.

                              - 6 -
in its indictment or prove beyond reasonable doubt that a defendant

had prior convictions for a district court to use those convictions

for purposes of enhancing a sentence.          In Apprendi v. New Jersey,

530 U.S. 466, 490 (2005), the Supreme Court held that “[o]ther than

the fact of a prior conviction, any fact that increases the penalty

for   a   crime   beyond   the   prescribed   statutory   minimum   must   be

submitted to a jury, and           proved beyond a reasonable doubt.”

Apprendi did not overrule Almendarez-Torres, and the Court recently

reaffirmed its holding in Apprendi.         See Booker, 125 S. Ct. at 756.

Therefore, we conclude that the district court did not err in

considering Valle’s prior convictions to calculate his criminal

history.

            Because Valle has shown no Sixth Amendment error in the

calculation of his criminal history points or his sentence, we

affirm the conviction as well as the sentence imposed by the

district court.      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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