UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 04-4699

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

CHANC DEON SNIPES,

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-04-39)

Submitted: August 12, 2005 Decided: November 29, 2005

Before LUTTIG, MICHAEL, and DUNCAN, 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Affirmed by unpublished per curiam opinion.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, Michael A.

DeFranco, Assistant United States Attorney, Greensboro, North

Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

See Local Rule 36(c).
1Based on this court’s decision in United States v. Hammoud,

378 F.3d 426 (4th Cir.) (order), opinion issued by 381 F.3d 316

(4th Cir. 2004) (en banc), vacated, 125 S. Ct. 1051 (2005), the

Government asserted that Blakely did not apply to the federal

sentencing guidelines. 

2Snipes’ controlled substance offense for felony possession

with intent to manufacture, sell and deliver cocaine was part of

the indictment. However, Snipes’ crime of violence for felony

indecent liberties with a minor was not in the indictment.

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PER CURIAM:

Chanc Deon Snipes appeals the 72-month sentence he

received after he pled guilty to one count for possession of a

firearm by a convicted felon, in violation of 18 U.S.C.

§§ 922(g)(1) and 924(a)(2) (2000). We affirm Snipes’ sentence.

Snipes maintains that under Blakely v. Washington, 542

U.S. 296 (2004), the district court violated his Sixth Amendment

rights by enhancing his offense level based on facts that were

neither charged in the indictment nor proven beyond a reasonable

doubt.1 Specifically, Snipes claims that his rights under the

Sixth Amendment were violated when the district court determined

his base offense level, under U.S. Sentencing Guidelines Manual

§ 2K2.1(a)(2) (2003), by considering a prior conviction for which

he was not indicted.2 Because Snipes preserved this issue by

objecting to the presentence report and at his sentencing hearing

based upon Blakely, this court’s review is de novo. See United

States v. Mackins, 315 F.3d 399, 405 (4th Cir. 2003).
3As in United States v. Evans, 416 F.3d 298 (4th Cir. 2005),

for purposes of determining whether a Sixth Amendment violation

occurred, the sentence imposed on Snipes is compared against the

guideline range that was properly determined (thus not considering

the challenged base offense level of twenty-four, under USSG

§ 2K2.1(a)(2)) before that range was adjusted to account for the

three-point reduction in offense level Snipes received for

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The Supreme Court held in United States v. Booker, 125 S.

Ct. 738, 746, 750 (2005), that the mandatory manner in which the

federal sentencing guidelines required courts to impose sentencing

enhancements based on facts found by the court by a preponderance

of the evidence violated the Sixth Amendment. In AlmendarezTorres v. United States, 523 U.S. 224, 233-35 (1998), the Supreme

Court held that the government need not allege in its indictment

and need not prove beyond reasonable doubt that a defendant had

prior convictions for a district court to use those convictions for

purposes of enhancing a sentence. 

We find no Sixth Amendment error occurred. Had the

district court only considered Snipes’ prior conviction for a

controlled substance offense, which was not a fact outside the

indictment, then Snipes’ base offense level would have been twenty,

under USSG § 2K2.1(a)(4)(A) (a base offense level of twenty applies

if “the defendant committed any part of the instant offense

subsequent to sustaining one felony conviction for either a crime

of violence or a controlled substance offense”), instead of twentyfour. Therefore, Snipes’ maximum total offense level would have

been twenty rather than twenty-one.3 Based on offense level twenty
acceptance of responsibility.

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and Snipes’ criminal history category of V, Snipes’ sentencing

range would have been sixty-three to seventy-eight months. Snipes’

actual sentence of seventy-two months fell squarely within that

range. Because Snipes’ sentence did not exceed the maximum

authorized by the facts of the offense to which he pled guilty,

there was no Sixth Amendment violation in his sentencing. 

Regarding his criminal history points for prior

convictions, Snipes argues that the factual findings required to

determine whether particular convictions are countable and how many

points are assessed involve more than the mere fact of a prior

conviction and therefore are subject to the requirements of

Blakely. However, the application of the prior conviction

exception to Snipes does not raise any of the problems outlined in

Shepard v. United States, 125 S. Ct. 1254, 1262-63 (2005), because

no facts related to Snipes’ prior convictions were disputed.

Therefore, the district court’s assessment of seven criminal

history points based on Snipes’ prior convictions did not violate

the Sixth Amendment.

Turning to the two criminal history points assessed

because Snipes committed the instant offense while on unsupervised

probation and the one point for committing the instant offense less

than two years after release from imprisonment on a sentence

counted under USSG § 4A1.1(a) or (b), we conclude that the district
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court did not err in assessing these points because they do not

require evaluation of the type of facts found outside the

indictment that are “too far removed from the conclusive

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

Washington, 404 F.3d 834, 842 (4th Cir. 2005).

Accordingly, we affirm Snipes’ 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