UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 04-4566

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

TRAVIS LEE FERGUSON,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern

District of North Carolina, at Raleigh. Terrence W. Boyle, Chief

District Judge. (CR-03-281-BO)

Submitted: August 15, 2005 Decided: October 11, 2005

Before NIEMEYER, TRAXLER, and GREGORY, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Thomas P. McNamara, Federal Public Defender, G. Alan DuBois,

Assistant Federal Public Defender, Windy C. Venable, Research and

Writing Specialist, Raleigh, North Carolina, for Appellant.

Frank D. Whitney, United States Attorney, Anne M. Hayes, Christine

Witcover Dean, Assistant United States Attorneys, Raleigh, North

Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

See Local Rule 36(c).
1In his plea agreement, Ferguson waived his right to appeal.

However, the Government’s motion to dismiss based on the waiver was

filed over seven months after briefing was completed. Accordingly,

the motion is denied as untimely.

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PER CURIAM:

Travis Lee Ferguson challenges his 46-month sentence

entered pursuant to his guilty plea to possession of a firearm by

a convicted felon.1 On appeal, Ferguson argues that his sentence

was unconstitutional under United States v. Blakely, 542 U.S. 296

(2004). We find no plain error, and thus, we affirm.

In United States v. Booker, 125 S. Ct. 738 (2005), the

Supreme Court held that Blakely applies to the federal sentencing

guidelines and that the mandatory guidelines scheme that provided

for sentence enhancements based on facts found by the court

violated the Sixth Amendment. 125 S. Ct. at 746-48, 755-56.

Ferguson contends that his sentence runs afoul of Blakely for two

reasons: (1) his base offense level was calculated on the basis of

a prior controlled substance offense, while the indictment charged

only a prior felony, and (2) the court enhanced his sentence for

possession of the firearm in connection with another felony, facts

that were neither charged nor admitted. Because Ferguson did not

raise these claims below, review is for plain error. United

States v. Harp, 406 F.3d 242, 247 (4th Cir. 2005).

Regarding the prior controlled substance offense, under

Apprendi v. New Jersey, 530 U.S. 466, 490 (2000), a sentence may be
2

While Ferguson did receive a reduction for acceptance of

responsibility, when determining if Booker error occurred, this

court looks to the guideline range before any reduction for

acceptance of responsibility. See United States v. Evans, 416 F.3d

298, 300 n.4 (4th Cir. 2005).

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enhanced based on the fact of a prior conviction. However, when

the sentencing court looks “beyond the charging document, the terms

of a plea agreement, the plea colloquy, the statutory definition,

or any explicit finding of the trial court to determine a fact

about a prior conviction,” then the finding has gone too far afield

from the prior judicial record and falls outside the Apprendi

exception to the Booker holding. United States v. Collins, 412

F.3d 515, 521-22 (4th Cir. 2005). Ferguson was previously

convicted of possession with intent to sell and deliver cocaine.

The district court did not need to make any factual findings about

this conviction to conclude that it was a controlled substance

offense, within the definition of U.S. Sentencing Guidelines Manual

§ 2K2.1(a)(4) (2003). See Collins, 412 F.3d at 515. Therefore,

the enhancement of Ferguson’s offense level under § 2K2.1 was

within the Apprendi exception and did not violate the Sixth

Amendment.

Turning to the firearm enhancement, Ferguson’s offense

level would have been 20 without the enhancement. Because Ferguson

was in criminal history category III, his guideline range would

have been 41 to 51 months.2

 Thus, Ferguson’s 46-month sentence did

not exceed the maximum sentence allowed based on the facts he
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admitted. Therefore, Ferguson has failed to show plain error. See

United States v. Hughes, 401 F.3d 540, 546-47 (4th Cir. 2005)

(outlining requirements for showing plain error in Booker context).

Accordingly, we affirm Ferguson’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