                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 05-5053



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

          versus


ROBERT   MICHAEL    JORDAN,   a/k/a   Michael
Christopher Jordan, a/k/a Yophet Brown,

                                              Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Richard L. Voorhees,
District Judge. (CR-04-39)


Submitted:   October 25, 2006          Decided:     November 14, 2006


Before NIEMEYER and GREGORY, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


Haakon Thorsen, Charlotte, North Carolina, for Appellant. Gretchen
C. F. Shappert, United States Attorney, Charlotte, North Carolina,
Amy Elizabeth Ray, OFFICE OF THE UNITED STATES ATTORNEY, Asheville,
North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

          Robert Michael Jordan pled guilty pursuant to a plea

agreement to conspiracy to possess with intent to distribute five

kilograms or more of cocaine and fifty grams or more of cocaine

base, in violation of 21 U.S.C. §§ 841, 846 (2000).    Pursuant to

the Government’s filing of a 21 U.S.C. § 851 (2000) information

listing a prior felony drug conviction, Jordan was sentenced to the

statutory mandatory minimum term of twenty years’ imprisonment.

See 21 U.S.C. § 841(b)(1)(A) (2000).   Jordan timely appealed, and

we affirm.

          Jordan’s appellate counsel has filed a brief pursuant to

Anders v. California, 386 U.S. 738 (1967), contending there are no

meritorious issues for appeal but suggesting the district court

erred at sentencing and Jordan received ineffective assistance of

counsel in regard to his guilty plea.1     Jordan filed a pro se

supplemental brief, alleging the district court’s imposition of

sentence violated United States v. Booker, 543 U.S. 220 (2005), and

its progeny.   The Government elected not to file a responsive

brief.2


     1
      This claim is not cognizable on direct appeal, as the record
does not conclusively establish ineffective assistance.     United
States v. Richardson, 195 F.3d 192, 198 (4th Cir. 1999); United
States v. King, 119 F.3d 290, 295 (4th Cir. 1997). Instead, if
Jordan wishes to raise an ineffective assistance claim, he must do
so in a motion filed pursuant to 28 U.S.C. § 2255 (2000).
     2
      The plea agreement contained a provision in which Jordan
agreed to waive his right to contest his conviction and sentence,

                              - 2 -
           Counsel suggests the district court erroneously amended

the § 851 information, erroneously sentenced Jordan pursuant to

§ 841(b)(1)(A), and impermissibly enhanced Jordan’s sentence based

on a prior conviction not alleged in the indictment. Because these

contentions   were   not    raised   in   the    district     court,   they   are

reviewed for plain error.       See United States v. Olano, 507 U.S.

725, 733-37 (1993).

           The record indicates the district court corrected a

clerical error in the § 851 information, which is permissible prior

to sentencing.     See 21 U.S.C. § 851(a)(1) (2000).              The district

court   provided   Jordan    “with    a   full   and   fair    opportunity    to

establish that he is not the previously convicted individual or

that the conviction is an inappropriate basis for enhancement.”

United States v. Ellis, 326 F.3d 593, 599 (4th Cir. 2003) (quoting

United States v. Campbell, 980 F.2d 245, 252 (4th Cir. 1992)).

Jordan acknowledged the prior felony drug conviction.              Clearly, he

cannot prove the “[clerical] error ‘actually affected the outcome




either on appeal or in a 28 U.S.C. § 2255 (2000) motion, except
for:   (1)   claims  of    ineffective  assistance   of   counsel;
(2) prosecutorial misconduct; or (3) the sentence, but only to the
extent sentencing calculations were inconsistent with the plea
agreement’s stipulations. However, the Government has not asserted
the waiver provision precludes review of Jordan’s conviction or
sentence on appeal.    Thus, we decline to enforce the appellate
waiver. See United States v. Blick, 408 F.3d 162, 168 (4th Cir.
2005) (stating that where Government expressly elects not to raise
waiver, this court may decline to consider it) (citing United
States v. Brock, 211 F.3d 88, 90 n.1 (4th Cir. 2000)).

                                     - 3 -
of the proceedings.’”    Ellis, 326 F.3d at 599 (quoting United

States v. Hastings, 134 F.3d 235, 240 (4th Cir. 1998)).

          Counsel contends Jordan pled guilty to a violation of

§ 846 instead of a dismissed count alleging a violation of § 841,

to which he contends the § 851 information applied.   However, § 846

adopts the penalty provisions of § 841.   See 21 U.S.C. § 846 (“Any

person who attempts or conspires to commit any offense defined in

this subchapter shall be subject to the same penalties as those

prescribed for the offense.”).

          Moreover, although the prior felony drug conviction was

not alleged in the indictment, the district court permissibly

enhanced Jordan’s sentence on the basis of this prior conviction.3

See United States v. Thompson, 421 F.3d 278, 284 n.4 (4th Cir.

2005) (concluding predicate convictions did not have to be charged

in the indictment or submitted to a jury so long as no facts

extraneous to those necessary to support the enhancement need be

decided to invoke the enhancement), cert. denied, 126 S. Ct. 1463

(2006); see also Shepard v. United States, 544 U.S. 13, 25 (2005)

(holding Sixth Amendment protections apply only to disputed facts

about a prior conviction that are not evident from “the conclusive

significance of a prior judicial record.”).




     3
      In fact, Jordan acknowledged the existence of this prior
conviction at the sentencing hearing.

                                 - 4 -
             In his pro se supplemental brief, Jordan alleges the

district court treated the sentencing guidelines as mandatory, in

violation of Booker and Hughes.            The record plainly rebuts this

allegation. However, the district court possessed no discretion to

sentence Jordan below 240 months’ imprisonment, because “Booker did

nothing to alter the rule that judges cannot depart below a

statutorily provided minimum sentence.” United States v. Robinson,

404 F.3d 850, 862 (4th Cir.), cert. denied, 126 S. Ct. 288 (2005).

             In accordance with Anders, we have reviewed the entire

record in this case and have found no meritorious issues for

appeal.      We therefore affirm Jordan’s conviction and sentence.

This court requires that counsel inform Jordan, in writing, of the

right to petition the Supreme Court of the United States for

further review.     If Jordan requests that a petition be filed, but

counsel believes that such a petition would be frivolous, counsel

may   move   in   this   court   for    leave   to   withdraw   from   further

representation.     Any such motion filed by counsel must state that

a copy thereof was served on Jordan.                 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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