Of the Northern District of California, sitting by *

designation.

Not for Publication in West's Federal Reporter

Citation Limited Pursuant to 1st Cir. Loc. R. 32.3

United States Court of Appeals

For the First Circuit

No. 04-1750 

UNITED STATES OF AMERICA,

Appellee,

v.

KEVIN BOULAIS,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Joseph A. DiClerico, U.S. District Judge]

Before

 Boudin, Chief Judge,

Selya, Circuit Judge,

and Schwarzer, Senior District Judge. *

Sven D. Wiberg and Desfosses Law Firm for appellant.

Joseph N. Laplante, Assistant United States Attorney, with

whom Thomas P. Colantuono, United States Attorney, was on brief

for appellee.

January 18, 2006
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SCHWARZER, Senior District Judge. Kevin Boulais

(“Boulais”) appeals his sentence of 100 months, imposed following

a guilty plea to one count of being a felon in possession of a

firearm, 18 U.S.C. § 922(g)(1). In sentencing Boulais, the

district court departed downward from the Armed Career Criminal

Act’s (“ACCA”) mandatory minimum sentence of 180 months. 18 U.S.C.

§ 924(e)(1). Boulais argues that his case should be remanded for

resentencing. We reject Boulais’ arguments and affirm his

sentence. 

FACTUAL AND PROCEDURAL HISTORY

Boulais pleaded guilty to one count of being a felon in

possession of a firearm, in violation of 18 U.S.C. § 922(g)(1).

The plea agreement stated that Boulais faced a maximum penalty of

ten years’ imprisonment, but indicated in a footnote that he could

face a fifteen-year minimum penalty with the potential for life

imprisonment if he was found to be an armed career criminal under

the ACCA, 18 U.S.C. § 924(e). After the plea agreement had been

signed, but before the plea colloquy, the government offered

evidence indicating that Boulais qualified for sentencing as an

armed career criminal. At the waiver of indictment and change of

plea hearing, Boulais was advised by the district court that he

could be sentenced as an armed career criminal.

At the sentencing hearing, Boulais raised a general

constitutional objection to the United States Sentencing Guidelines
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and a Sixth Amendment Confrontation Clause objection to the court’s

application of the ACCA. Boulais did not admit or stipulate to the

fact that he had prior convictions. However, when questioned

directly by the district court regarding his objection to the

ACCA’s application, Boulais stated that he had no factual basis for

challenging the prior convictions listed in the presentence report.

The district court initially calculated Boulais’

sentencing range under the Guidelines to be 168-210 months. Over

Boulais’ objection, the court found the ACCA’s fifteen-year minimum

sentence to apply, but departed downward on the government’s

substantial assistance motion to arrive at the 100 months’

sentence.

Following the Supreme Court’s decision in United States

v. Booker, 125 S. Ct. 738 (2005), we invited supplemental briefing

to address whether Boulais preserved a Booker claim and whether his

case should be remanded for resentencing.

DISCUSSION

We review a preserved claim of Booker error under the

harmless error standard. United States v. Vazquez-Rivera, 407 F.3d

476, 488 (1st Cir. 2005); see Booker, 125 S. Ct. at 769. Here,

Boulais preserved his Booker claim by challenging the Guidelines’

constitutionality in the district court. We review alleged

violations of the Sixth Amendment’s Confrontation Clause de novo.

United States v. Rondeau, 430 F.3d 44, 47 (1st Cir. 2005). 
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Boulais’ arguments for a remand for resentencing come

down to three propositions. We find none to be meritorious.

First, Boulais claims Booker error because the district

court conducted a Guidelines analysis of his potential sentence.

Such an error exists when a “defendant’s Guidelines sentence was

imposed under a mandatory system.” United States v.

Antonakopoulos, 399 F.3d 68, 75 (1st Cir. 2005). However, Boulais’

sentence was imposed under the ACCA, not the Guidelines, and hence

Booker does not apply. See United States v. Ivery, 427 F.3d 69, 71

(1st Cir. 2005) (holding sentencing under the ACCA not to be a

Booker error); United States v. Sanchez-Berrios, 424 F.3d 65, 80

n.8 (1st Cir. 2005). 

Second, Boulais objects on constitutional grounds to any

use of prior convictions not charged in the information or proved

to a jury. However, as we have made clear, following Booker, “it

remains the law that previous criminal convictions are not ‘facts’

that must be found by a jury and proved beyond a reasonable doubt.”

United States v. Work, 409 F.3d 484, 491 n.1 (1st Cir. 2005)

(citation omitted); see also Ivery, 427 F.3d at 74 (holding that

“nothing in Blakely or Booker alters the continuing validity of the

Almendarez-Torres exception to Apprendi”). Here, the presentence

report and the district court’s colloquy with Boulais provided a

constitutionally sufficient basis for sentencing Boulais under the

ACCA. Boulais admitted at sentencing that he did not “have a basis
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to challenge [any of the predicate convictions in the presentence

report] on a factual basis as a matter of proof on the burden.”

Nor is there merit in Boulais’ arguments based on Blakely v.

Washington, 542 U.S. 296 (2004), since his sentence was well below

the statutory maximum of life imprisonment. See United States v.

Perez-Ruiz, 353 F.3d 1, 15 (1st Cir. 2003).

Third, Boulais objects to the use of the criminal history

calculation in the Presentence Report on hearsay grounds. The

Sixth Amendment right to confront witnesses, however, does not

apply to sentencing. United States v. Luciano, 414 F.3d 174, 178-

79 (1st Cir. 2005). The district court’s use of the presentence

report raises no Confrontation Clause issue. 

Affirmed.