UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 05-5039 

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

MACK DANIEL BARTON,

Defendant - Appellant.

Appeal from the United States District Court for the Middle

District of North Carolina, at Durham. Frank W. Bullock, Jr.,

Senior District Judge. (CR-05-100)

Submitted: May 18, 2006 Decided: May 26, 2006

Before WIDENER and WILKINSON, Circuit Judges, and HAMILTON, Senior

Circuit Judge.

Affirmed by unpublished per curiam opinion.

Louis C. Allen, Federal Public Defender, William C. Ingram, First

Assistant Federal Public Defender, Greensboro, North Carolina, for

Appellant. Anna Mills Wagoner, United States Attorney, Michael F.

Joseph, 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Unpublished opinions are not binding precedent in this circuit.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:

Mack Daniel Barton pled guilty to possession of a firearm

by a convicted felon, 18 U.S.C. § 922(g)(1) (2000) (Count One),

possession of 8.4 grams of cocaine base (crack) with intent to

distribute, 21 U.S.C.A. § 841(a), (b)(1)(B) (West 1999 & Supp.

2005) (Count Three), and possession of a firearm in furtherance of

a drug trafficking crime, 18 U.S.C.A. § 924(c) (West 2000 & Supp.

2005) (Count Six). Barton was sentenced to a term of seventy-eight

months imprisonment, with a consecutive five year sentence for the

§ 924(c) offense. He argues on appeal that his sentence violates

the Fifth and Sixth Amendments because the district court assessed

criminal history points for certain prior criminal sentences, and

another two points because he was on probation when he committed

the instance offenses, although the supporting facts were not

charged in the indictment or admitted by him. We affirm.

Barton did not dispute the fact of his prior convictions

or the sentences he received, nor the fact that he was on probation

when he committed the instant offenses. The fact of a prior

conviction need not be proven beyond a reasonable doubt.

Almendarez-Torres v. United States, 523 U.S. 224, 233-36, 243-44

(1998); United States v. Cheek, 415 F.3d 349, 351-54 (4th Cir.)

(reaffirming continuing validity of Almendarez-Torres after United

States v. Booker, 543 U.S. 220 (2005)), cert. denied, 126 S. Ct.

640 (2005). Thus the district court was not required to make any
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factual findings concerning Barton’s prior record or his status at

the time of the instant offenses, but could rely on “the conclusive

significance” of his record, see Shepard v. United States, 544 U.S.

13, 25 (2005), as set out in the presentence report. See United

States v. Thompson, 421 F.3d 278, 285 (4th Cir. 2005) (sentencing

judge entitled to rely on undisputed information in presentence

report that “bears the earmarks of derivation from Shepard-approved

sources such as the indictments and state-court judgments from

[defendant’s] prior convictions”), cert. denied, 126 S. Ct. 1463

(2006). Therefore, we conclude that the district court did not

violate Barton’s Fifth or Sixth Amendment rights when it considered

his legal status and prior convictions in determining his sentence

and that the sentence was reasonable.

We therefore affirm the sentence imposed by the district

court. 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