UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 05-5128

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

TIMOTHY H. WALDEN,

Defendant - Appellant.

Appeal from the United States District Court for the Western

District of North Carolina, at Charlotte. Richard L. Voorhees,

District Judge. (CR-04-39)

Submitted: January 12, 2007 Decided: February 5, 2007

Before NIEMEYER and GREGORY, Circuit Judges, and HAMILTON, Senior

Circuit Judge.

Affirmed by unpublished per curiam opinion.

John C. Hunter, JOHN C. HUNTER LAW FIRM, PLLC, Asheville, North

Carolina, for Appellant. Gretchen C. F. Shappert, United States

Attorney, Charlotte, North Carolina, Amy E. Ray, Assistant United

States Attorney, Asheville, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
1

Walden does not challenge his convictions on appeal.

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PER CURIAM:

Timothy H. Walden pled guilty without a plea agreement to

conspiracy to possess with intent to distribute five kilograms or

more of cocaine and fifty grams or more of cocaine base, in

violation of 21 U.S.C. § 846 (2000); and possession with intent to

distribute 500 grams or more of cocaine, in violation of 21 U.S.C.

§ 841 (2000). After finding Walden qualified as a career offender

under U.S. Sentencing Guidelines Manual (“USSG”) § 4B1.1 (2004),

the district court sentenced Walden to 262 months’ imprisonment.

Walden appeals, claiming the district court erred in sentencing him

as a career offender.1 Finding no error, we affirm.

We review “legal questions, including the interpretation

of the guidelines, de novo, while factual findings are reviewed for

clear error.” United States v. Moreland, 437 F.3d 424, 433 (4th

Cir.), cert. denied, 126 S. Ct. 2054 (2006). A defendant is a

career offender if he was at least eighteen years old when the

instant offense was committed, the instant offense is a felony and

is either a crime of violence or a drug offense, and he has at

least two prior felony convictions for crimes of violence or drug

offenses. See USSG § 4B1.1.

Prior to sentencing, Walden filed written objections to

the presentence report, contending two February 2000 state court

convictions for possession with intent to manufacture, sell, or
2The district court sentenced Walden at the bottom of the

sentencing guidelines range. On appeal, Walden does not contend,

in the event the guidelines range was properly calculated, that

this sentence was unreasonable.

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deliver cocaine were consolidated and should have been counted as

a single conviction for sentencing purposes. At the sentencing

hearing, however, Walden’s counsel acknowledged these were separate

offenses for which Walden received consecutive sentences. Counsel

requested the district court to sentence Walden with a variance

below the sentencing guidelines range, maintaining Walden was not

aware until reading the presentence report that he had been

convicted on separate state court drug charges.2

“[T]he 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.” United States v.

Cheek, 415 F.3d 349, 354 (4th Cir.), cert. denied, 126 S. Ct. 640

(2005). Sixth Amendment protections apply only to disputed facts

about a prior conviction that are not evident from “the conclusive

significance of a prior judicial record.” Shepard v. United

States, 544 U.S. 13, 25-26 (2005). Walden’s prior record

established, and Walden acknowledged at sentencing, that he had two

convictions for drug offenses. Therefore, the district court’s

conclusion that Walden was a career offender was proper.
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Accordingly, we affirm Walden’s 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