UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 04-4309

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

ANTHONY POPE,

Defendant - Appellant.

Appeal from the United States District Court for the District of

Maryland, at Greenbelt. Peter J. Messitte, District Judge. (CR03-104)

Argued: May 27, 2005 Decided: June 24, 2005

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

Circuit Judge.

Affirmed by unpublished per curiam opinion.

ARGUED: Elita Ceta Amato, Washington, D.C., for Appellant. Timothy

B. Atkins, Assistant United States Attorney, OFFICE OF THE UNITED

STATES ATTORNEY, Greenbelt, Maryland, for Appellee. ON BRIEF:

Thomas M. DiBiagio, United States Attorney, Greenbelt, Maryland,

for Appellee.

Unpublished opinions are not binding precedent in this circuit.

See Local Rule 36(c).
1Pope filed a motion to remand his case for resentencing after

he filed his initial appeal. We reserved judgment on that motion

until we ruled on the appeal.

2

PER CURIAM:

On January 15, 2004, Anthony W. Pope (“Pope”) pleaded guilty

to one count of possession with intent to distribute 50 grams or

more of cocaine base, in violation of 21 U.S.C. § 841(a)(1), and

aiding and abetting, in violation of 18 U.S.C. § 2, pursuant to a

written plea agreement. On April 19, 2004, the district court

sentenced Pope to 262 months imprisonment followed by five years of

supervised release. On appeal, Pope objects to the district

court’s finding that he is a career offender and argues that the

district court erred in treating the sentencing guidelines as

mandatory.1 We hold that the district court did not err in finding

Pope to be a career offender and did not commit plain error that

actually prejudiced Pope in treating the sentencing guidelines as

mandatory. We thus affirm Pope’s conviction.

I.

Pursuant to Pope’s plea agreement, he agreed that he was

responsible for more than 150 grams but less than 500 grams of

cocaine base. He further agreed that his base level offense should

be increased by two levels for the possession of a dangerous

weapon. The Government agreed not to oppose a three level
3

reduction for acceptance of responsibility. The plea did not

contain an agreement as to Pope’s criminal history. 

At sentencing, the district court found that Pope was a career

offender pursuant to U.S. Sentencing Guideline Manual § 4B1.1,

based upon his prior felony convictions for robbery with a deadly

weapon and unlawful possession with intent to distribute cocaine.

Pope’s counsel conceded that Pope had “two prior predicate

offenses. The one is robbery and the second one is for possession

with intent to distribute.” J.A. 21. Pope’s counsel then moved

for a downward departure arguing that categorizing Pope as a career

offender overrepresented his criminal history. The district court

judge rejected this argument, noting that Pope had “been involved

in crimes since he was 15 years old, reported[ly], involving

assaults, thefts, drug activities” and finding that Pope “is very

much in the heartland of the career offender.” Id. at 30-31. Pope

waived certain appellate rights in his plea agreement but reserved

the right to appeal the district court’s decision on whether he was

a career offender.

II.

We first address Pope’s argument that under United States v.

Booker, 125 S. Ct. 738 (2005), the district court erred by treating

the sentencing guidelines as mandatory in determining his
2Pope does not argue that the district court judge imposed a

sentence greater than the maximum authorized solely by the facts

that he admitted and thus does not claim a Sixth Amendment

violation under Booker.

4

sentence.2 Because Pope did not raise this issue below, our review

is for plain error. To establish plain error, Pope must show that

an error occurred, that the error was plain, and that the error

affected his substantial rights. United States v. Olano, 507 U.S.

725, 732 (1993). Even if Pope makes this showing, we may only

correct the error if it “seriously affect[s] the fairness,

integrity or public reputation of judicial proceedings.” Id.

(internal citations omitted). 

We recently addressed the proper analysis for evaluating a

defendant’s claim that the district court erred in failing to treat

the guidelines as advisory. In United States v. White, 405 F.3d

208 (4th Cir. 2005), we held with regard to a defendant whose

appeal was pending when Booker was decided, that it was error,

which was plain, for the district court to treat the guidelines as

mandatory. Id. at 217. However, to satisfy the third prong of

plain error analysis a defendant must show that he was actually

prejudiced. Id. at 223. 

Pope has not met his burden of demonstrating that the error of

sentencing him under the mandatory guidelines regime affected the

outcome of the district court proceedings. The district court

judge made no statements at sentencing indicating that he wished to
5

sentence Pope below the guideline range but that the guidelines

prevented him from doing so. In addition, the district court judge

specifically noted after denying Pope’s motion for a downward

departure based on overrepresentation of criminal history that:

There is no indication that he has learned any lessons

about anything, quite candidly. He has had a life of

crime. Perhaps with his being out of circulation for an

extended period of time, he won’t come back to a life of

crime, but the community can’t take a chance on that

right now.

J.A. 31. The district court judge went on to give Pope a sentence

at the lower end of the guidelines range but did not give any

indication that this sentence was too harsh. Given these comments

at sentencing, it is apparent that the district court felt that

Pope’s sentence was entirely appropriate for him, especially

considering his criminal history. Thus, Pope cannot demonstrate

that he was actually prejudiced by the district court’s error. 

Second, Pope challenges his career offender status. Pope

concedes that he has two prior qualifying convictions but argues

that the prior conviction exception laid out in Almendarez-Torres

v. United States, 523 U.S. 224 (1998), may no longer be good law.

This argument is foreclosed by the Supreme Court’s reaffirmation of

the Almendarez-Torres prior conviction exception in Booker. See

Booker, 125 S. Ct. at 756 (“Any fact (other than a prior

conviction) which is necessary to support a sentence exceeding the

maximum authorized by the facts established by a plea of guilty or
3While Justice Thomas’s concurrence in Shepard v. United

States, 125 S. Ct. 1254, 1263-64 (2005), expressed doubt on the

future viability of the exception, the exception is still good law.

6

a jury verdict must be admitted by the defendant or proved to a

jury beyond a reasonable doubt.”) (emphasis added).3 

Likewise, the application of the prior conviction exception to

Pope does not raise any of the problems outlined in Shepard v.

United States, 125 S. Ct. 1254 (2005). In Shepard, the Supreme

Court instructed that Sixth Amendment protections apply to disputed

facts about a prior conviction. Id. at 1262-63. Because no facts

related to Pope’s prior convictions are disputed, the district

court judge’s application of the career offender designation to

Pope did not violate the Sixth Amendment. Cf. United States v.

Washington, 404 F.3d 834, 843 (4th Cir. 2005) (finding that

district court’s reliance on disputed facts about the defendant’s

prior conviction violated the defendant’s Sixth Amendment right to

trial by jury).

III.

For the foregoing reasons, we affirm Pope’s sentence and deny

his motion to remand.

AFFIRMED