UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 04-4816

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

DWAIN THOMAS REECE,

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-04-132)

Submitted: August 17, 2005 Decided: September 13, 2005

Before NIEMEYER, LUTTIG, and MICHAEL, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Louis C. Allen, III, Federal Public Defender, William S. Trivette,

Assistant Federal Public Defender, Greensboro, North Carolina, for

Appellant. Anna Mills Wagoner, United States Attorney, Robert M.

Hamilton, Assistant United States Attorney, Greensboro, North

Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

See Local Rule 36(c).
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PER CURIAM:

Dwain Thomas Reece appeals the fifty-four month sentence

imposed after he pled guilty to armed bank robbery, in violation of

18 U.S.C. § 2113(d) (2000). Reece does not challenge his

conviction on appeal. Reece’s counsel filed a brief pursuant to

Anders v. California, 386 U.S. 738 (1967), stating that there were

no meritorious issues for appeal, yet objecting to his criminal

history category under the Supreme Court’s decision in Blakely v.

Washington, 542 U.S. 296 (2004). Reece, by counsel, also filed a

supplemental brief in which he argued that, in light of the Supreme

Court’s decision in United States v. Booker, 125 S. Ct. 738 (2005),

the district court erred by sentencing him under the mandatory

guidelines. Because our review of the record discloses no

reversible error, we affirm Reece’s sentence.

Reece first contends that, under the Supreme Court’s

decision in Blakely v. Washington, 542 U.S. 296 (2004), the

district court erroneously calculated his criminal history score,

as the court had to make factual findings beyond the mere fact of

conviction. In Apprendi v. New Jersey, 530 U.S. 466, 490 (2000),

the Supreme Court held that “[o]ther than the fact of a prior

conviction, any fact that increases the penalty for a crime beyond

the prescribed statutory maximum must be submitted to a jury, and

proved beyond a reasonable doubt.” In Booker, the Supreme Court

reaffirmed its holding in Apprendi. See Booker, 125 S. Ct. at 756
1Reece maintains that this issue was properly preserved based

on his Blakely objection that was raised before the district court.

We find, however, that Reece’s objection was narrowly tailored to

the calculation of his criminal history category.

2Although Booker establishes that the district court erred by

treating the guidelines as mandatory, we note that the court

followed the law in effect at the time of Reece’s sentencing.

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(Stevens, J., opinion of the Court). While we have recognized that

not all prior convictions fall within the Apprendi exception

framework, see United States v. Washington, 404 F.3d 834, 842-43

(4th Cir. 2005), because they may require attendant, impermissible

fact-finding by the district court, such concerns are inapplicable

in this case because none of the facts underlying the district

court’s assessment of Reece’s criminal history points were

disputed. We therefore find that the district court’s assessment

of criminal history points did not violate the Sixth Amendment.

Reece also maintains that even if the district court did

not err in calculating his criminal history category, it erred in

failing to treat the guidelines as advisory. Because this issue

was not raised before the district court, we review for plain

error.1 Under this standard, although Reece is correct that the

district court committed error in treating the guidelines as

mandatory,2 see Hughes, 401 F.3d at 547-48, he is not entitled to

relief. We recently held that in a plain error context, the error

of sentencing under the mandatory guidelines regime did not warrant

a presumption of prejudice nor was it a structural error. United
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States v. White, 405 F.3d 208, 224 (4th Cir. 2005). As nothing in

the record suggests the error affected the court’s ultimate

determination of Reece’s sentence, Reece cannot satisfy the

prejudice requirement of the plain error standard. 

As required by Anders, we have reviewed the entire record

and have found no meritorious issues for appeal. We therefore

affirm Reece’s conviction and sentence. This court requires that

counsel inform his client, in writing, of his right to petition the

Supreme Court of the United States for further review. If the

client requests that a petition be filed, but counsel believes that

such a petition would be frivolous, then counsel may move in this

court for leave to withdraw from representation. Counsel’s motion

must state that a copy thereof was served on the client. 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