                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 05-4172



UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

          versus


ESIEN UDONKANG,

                                              Defendant - Appellant.



Appeal from the United States District Court for the Southern
District of West Virginia, at Bluefield. David A. Faber, Chief
District Judge. (CR-04-139)


Submitted:   September 30, 2005           Decided:   November 2, 2005


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


Affirmed by unpublished per curiam opinion.


Mary Lou Newberger, Federal Public Defender, Jonathan D. Byrne,
Appellate Counsel, George H. Lancaster, Jr., Assistant Federal
Public Defender, Charleston, West Virginia, for Appellant. Kasey
Warner, United States Attorney, Edward J. Kornish, Special
Assistant United States Attorney, Charleston, West Virginia, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

           Esien Udonkang pled guilty to possession with intent to

distribute for remuneration a quantity of marijuana in violation of

21 U.S.C. § 841(a)(1) (2000).              The district court adopted the

findings in the presentence report, which included a sentencing

range of 77 to 96 months, and sentenced Udonkang to 84 months of

imprisonment.     Udonkang’s sentence exceeded the maximum term of

imprisonment for the amount of marijuana involved because of his

prior drug felony under 21 U.S.C.A. § 841(b)(1)(D) (West Supp.

2005).    On appeal, Udonkang raises three issues, whether: (1) the

Government should have been barred from seeking his enhanced

sentence under § 841(b)(1)(D) because they failed to timely provide

him   notice    under   21    U.S.C.   §     851    (2000);     (2)   §   851   is

unconstitutional because it increases his sentence and was not

contained in his indictment or proved to a jury beyond a reasonable

doubt; and (3) his sentence violates the Sixth Amendment.                 For the

reasons that follow, we affirm.

           Udonkang’s      first   issue    fails    because    the   Government

served him with § 851 notice prior to the entry of his guilty plea.

With regard to timeliness, no more is required under the statute.

See 21 U.S.C. § 851(a)(1).

           Next, Udonkang alleges that § 851 is unconstitutional

because   it   increased     his   sentence   without    a     jury   finding   or

admission by him.       This claim fails, however, because the prior


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conviction   exception   discussed   in   Almendarez-Torres   v.   United

States, 523 U.S. 224 (1998), was recently reaffirmed by the Supreme

Court.   See United States v. Booker, 125 S. Ct. 738, 756 (2005)

(“Any fact (other than a prior conviction) which is necessary to

support a sentence exceeding the maximum authorized by the facts

established by a plea of guilty or a jury verdict must be admitted

by the defendant or proved to a jury beyond a reasonable doubt.”).

The record clearly reflects that Udonkang had a prior West Virginia

felony for “Possession With Intent to Manufacture and Deliver a

Controlled Substance, to wit: Cocaine.”       (J.A. 9-10).

           Finally, Udonkang alleges that the district court erred

because it sentenced him under the mandatory guideline scheme that

existed prior to the Supreme Court’s decision in Booker.               In

Booker, 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




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the Guidelines advisory.     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 court imposes

a sentence outside the Guideline range, the district court must

state its reasons for doing so.       United States v. Hughes, 401 F.3d

540, 546 (4th Cir. 2005).       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, J., opinion of the

Court)).

           This claim fails in the instant appeal, however, because

although Udonkang’s sentencing hearing occurred the day before

Booker issued, his criminal judgment was not entered until after

Booker.    It is clear from the record that the district court

considered its new discretion under Booker and determined that it

would have given great weight to the Sentencing Guidelines and

imposed the same sentence.      (J.A. 110 n.*).*     Thus, the district




     *
      Although not raised by Udonkang, we note that the district
court considered the factors in 18 U.S.C.A. § 3553(a), as directed
by the Court in Booker, and that the sentence appears to be
“reasonable.” See Hughes, 401 F.3d at 546-47.

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court did not sentence, as Udonkang argues, under the mandatory

guidelines system that existed prior to Booker.

          Accordingly, we affirm.   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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