                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 05-4628



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

          versus


DONNIE WAYNE NIPPER,

                                              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-04-434)


Submitted:   February 23, 2006             Decided:   March 1, 2006


Before WIDENER, NIEMEYER, and KING, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Lisa S. Costner, LISA S. COSTNER, P.A., Winston-Salem, North
Carolina, for Appellant.     Anna Mills Wagoner, United States
Attorney, Douglas Cannon, 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Unpublished opinions are not binding precedent in this circuit.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:

             Donnie   Wayne   Nipper   appeals   the   195-month   sentence

imposed after he pleaded guilty to one count of transporting stolen

vehicles in interstate commerce, in violation of 18 U.S.C. §§ 2312,

2 (2000), and possession of a firearm in commerce after a felony

conviction, in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2)

(2000).   The district court concluded that Nipper qualified for

sentencing as an armed career criminal and sentenced him under an

advisory sentencing regime, after consideration of the applicable

sentencing range and the factors under 18 U.S.C. § 3553(a) (2000),

to a sentence in the middle of the applicable guideline range.

             On appeal, Nipper asserts that his sentence violates the

Supreme Court’s holding in United States v. Booker, 543 U.S. 220

(2005), because his sentence was enhanced based upon facts, i.e.,

his qualifying prior convictions, that were not alleged in the

indictment, admitted to by him, or found by a jury beyond a

reasonable     doubt.     Nipper   does    not   assert   that   his   prior

convictions are not valid predicates for sentencing as an armed

career criminal, but states only a legal challenge to his sentence.

Nipper acknowledges that his argument is foreclosed by existing

Supreme Court precedent on prior convictions and this court’s

decision in United States v. Cheek, 415 F.3d 349 (4th Cir. 2005).

He asserts, however, that the prior conviction exception will

eventually be overruled, based on Justice Thomas’s concurrence in


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United States v. Shepard, 125 S. Ct. 1254 (2005).            In Cheek, we

considered     and   rejected   an    argument   identical   to   Nipper’s

contentions on appeal.     We concluded:

          It is thus clear that the Supreme Court
          continues to hold that the Sixth Amendment (as
          well as due process) does not demand that the
          mere fact of a prior conviction used as a
          basis for a sentencing enhancement be pleaded
          in an indictment and submitted to a jury for
          proof beyond a reasonable doubt. Even were we
          to agree with Cheek’s prognostication that it
          is only a matter of time before the Supreme
          Court overrules Almendarez-Torres, we are not
          free to overrule or ignore the Supreme Court’s
          precedents.

Cheek, 415 F.3d at 352-53.

             We therefore affirm Nipper’s conviction and sentence. 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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