                             UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                             No. 05-4096



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

          versus


NORVELL BLYTHE BAKER,

                                              Defendant - Appellant.


Appeal from the United States District        Court for the Middle
District of North Carolina, at Durham.         James A. Beaty, Jr.,
District Judge. (CR-04-254)


Submitted:   June 27, 2005                 Decided:    July 26, 2005


Before NIEMEYER, GREGORY, and SHEDD, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Louis C. Allen III, Federal Public Defender, Gregory Davis,
Assistant Federal Public Defender, Greensboro, North Carolina, for
Appellant. Anna Mills Wagoner, United States Attorney, Sandra J.
Hairston, L. Patrick Auld, Assistant United States Attorneys,
Greensboro, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

             Norvell Blythe Baker appeals his 325 month sentence

resulting    from    his   conviction      for   possession     with   intent     to

distribute cocaine base in violation of 21 U.S.C. § 841 (2000), and

possession of a firearm during drug trafficking in violation of 18

U.S.C. § 924(c)(1)(A)(i) (2000).            Finding no reversible error, we

affirm.

             Baker pled guilty and does not challenge his conviction.

Baker claims that the district court violated his Sixth Amendment

rights by enhancing his sentence by virtue of a designation of

career offender under U.S. Sentencing Guideline Manual § 4B1.1

(2004), on facts not alleged in the indictment, not admitted by

Baker, and not found by a jury beyond a reasonable doubt in

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

             In order for Baker to be designated a career offender,

the Government had to establish (1) that Baker was at least 18 at

the time of the instant offense, (2) that the instant offense is a

felony that is either a “crime of violence” or a “controlled

substance offense,” and (3) that Baker had at least two prior

felony     convictions     for    either    a    “crime    of   violence”    or   a

“controlled substance offense.”            USSG § 4B1.1(a); United States v.

Harp, 406 F.3d 242, 245 (4th Cir. 2005).

             Baker does not contest that he was thirty-two years old

at   the    time    of   the     instant   offense,       satisfying   the   first


                                       - 2 -
requirement     of    a   career   offender     under   USSG   §   4B1.1(a).   A

controlled substance offense is:                “an offense under federal or

state law, punishable by imprisonment for a term exceeding one

year, that prohibits the . . . distribution, or dispensing of a

controlled substance . . . or the possession of a controlled

substance   .   .    .    with   intent    to   manufacture,   import,   export,

distribute, or dispense.”              USSG § 4B1.2(b).         In the instant

offense, Baker pled guilty to possession of fifty grams or more of

cocaine base with intent to distribute in violation of 21 U.S.C.

§ 841(a)(1), (b)(1)(A) (2000), a felony that carries a minimum

sentence of ten years in prison. As the indictment states, cocaine

base is a controlled substance within the meaning of 21 U.S.C.

§ 812 (2000).       Baker pled guilty to a controlled substance offense

punishable by imprisonment exceeding one year, satisfying the

second requirement of USSG § 4B1.1(a).

            Under USSG § 4B1.2(a)(2), a “crime of violence” includes

any offense “punishable by imprisonment exceeding one year” that is

“a burglary of a dwelling.”            This Court has held that “burglary of

a dwelling constitutes a crime of violence.”                   United States v.

Harrison, 58 F.3d 115, 119 (4th Cir. 1995).             In both 1993 and 2001,

Baker was convicted of felony breaking and entering of a dwelling

and larceny.         For each conviction he was sentenced to fifteen

months’ imprisonment.            Id.      Baker does not dispute any facts

related to his prior convictions.               As Baker had two prior felony


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convictions   for    crimes    of    violence,      he    satisfied    the    third

requirement of USSG § 4B1.1(a).

           Baker argues that the finding of a crime of violence

constituted   impermissible         judicial     fact-finding,        but    Booker

specifically excepted prior convictions from its requirement that

facts be admitted or proven to a jury beyond a reasonable doubt.

Booker, 125 S. Ct. at 756.      Baker’s prior convictions qualified as

crimes of violence as a matter of law; this conclusion required no

further judicial fact-finding. See United States v. Ward, 171 F.3d

188, 192 (4th Cir. 1999) (court’s inquiry into career offender

status   generally   limited    to    “the   fact    of    conviction       and   the

statutory elements of the prior offense”).               The district court did

not err in its ruling that Baker qualified for the career offender

sentence enhancement.

           Baker claims that even if he qualified as a career

offender, the district court violated his Sixth Amendment rights

because his prior convictions were not admitted by him or found by

a jury beyond a reasonable doubt.            In United States v. Harp, 406

F.3d 242 (4th Cir. 2005), this court, applying the plain error

standard, found that even if the district court committed plain

error when it determined that defendant was a career offender

without the elements of that designation having been charged in an

indictment, this court would not exercise its discretion to correct

that error.   Harp, 406 F.3d at 247.         In Almendarez-Torres v. United


                                     - 4 -
States, 523 U.S. 224 (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,   this   court   has   concluded   that

Almendarez-Torres was not overruled by Apprendi.              See United

States v. Sterling, 283 F.3d 216, 220 (4th Cir. 2002).

           Baker finally maintains that even if the district court

did not err in designating him a career offender, it erred in

failing to treat the guidelines as advisory. Because Baker did not

raise this issue in the district court, we review for plain error.

Under this standard, although Baker is correct that the district

court committed error in treating the guidelines as mandatory,* see

Hughes, 401 F.3d at 547-48, he is not entitled to relief.             This

court recently held that in a plain error context, the error of

sentencing under the mandatory guidelines regime did not, in the

absence of a Sixth Amendment violation, warrant a presumption of

prejudice nor was it a structural error.       United States v. White,

405 F.3d 208, 224 (4th Cir. 2005).          As it is apparent that the

error did not affect the court’s ultimate determination of Baker’s


     *
      Just as we noted in Hughes, 401 F.3d at 545 n.4, “[w]e of
course offer no criticism of the district judge, who followed the
law and procedure in effect at the time” of Baker’s sentencing.

                                - 5 -
sentence, Baker cannot satisfy the prejudice requirement of the

plain error standard.

             Moreover, even if Baker had preserved this issue for

appellate     review,   the         district    court’s    application      of     the

guidelines as mandatory was clearly harmless.                   The harmless error

standard permits an error at sentencing to be disregarded if the

reviewing court is certain that any such error “did not affect the

district court’s selection of the sentence imposed.”                     Williams v.

United States, 503 U.S. 193, 203 (1992).                    The district court

imposed an identical sentence under both the mandatory federal

sentencing guidelines and, in the alternative, based upon its own

judicial discretion if the federal guidelines were later found not

to be mandatory. Because the district court imposed an alternative

discretionary sentence pursuant to 18 U.S.C.A. § 3553 (West 2000 &

Supp. 2004), that was identical to the guideline sentence, this

court could confidently conclude that the error inherent in the

application of the guidelines as mandatory did not affect the

district court’s ultimate determination of the sentence.                         Thus,

even if Baker had preserved this issue for appellate review, it

would   be   unnecessary       to    vacate    his   sentence     and    remand    for

resentencing since he would, according to the sentencing court,

receive the same sentence even applying the guidelines as advisory.

             Accordingly, we affirm Baker’s conviction and sentence.

We   dispense   with    oral    argument       because    the    facts    and    legal


                                        - 6 -
contentions are adequately presented in the materials before the

court and argument would not aid the decisional process.



                                                           AFFIRMED




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