UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 05-4009

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

WILLIS LOUIS ALSTON,

Defendant - Appellant.

Appeal from the United States District Court for the Middle

District of North Carolina, at Durham. N. Carlton Tilley, Jr.,

Chief District Judge. (CR-04-209)

Submitted: December 30, 2005 Decided: February 7, 2006

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

Circuit Judge.

Affirmed by unpublished per curiam opinion.

Louis C. Allen, III, Federal Public Defender, Eric D. Placke,

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Unpublished opinions are not binding precedent in this circuit.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).
1A person who violates § 922(g)(1) and has three prior

convictions for violent felonies or serious drug offenses

“committed on occasions different from one another” is an armed

career criminal subject to enhanced penalties. 18 U.S.C.A.

§ 924(e)(1); USSG § 4B1.4 (2003).

2

Alston does not challenge the validity of his prior

convictions.

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PER CURIAM:

Willis Louis Alston pled guilty to possession of a

firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1)

(2000). Alston’s sentencing range under the U.S. Sentencing

Guidelines Manual (2003) was 135 to 168 months in prison. However,

the district court found that Alston qualified as an armed career

criminal based on three prior convictions for drug offenses

punishable by more than a year in prison. Because the statutory

minimum sentence of fifteen years under the Armed Career Criminal

Act, 18 U.S.C.A. § 924(e)(1) (West 2000 & Supp. 2005),1 was greater

than the guideline range, the district court sentenced Alston to

180 months in prison. Alston timely appealed.

The sole issue on appeal is whether the district court

violated the Sixth Amendment by sentencing Alston as an armed

career criminal because his prior offenses were not admitted by

Alston or submitted to a jury.2 Because Alston preserved his Sixth

Amendment challenge by objecting to the presentence report based

upon Blakely v. Washington, 542 U.S. 296 (2004), this court’s

review is de novo. United States v. Mackins, 315 F.3d 399, 405

(4th Cir. 2003). When a defendant preserves a Sixth Amendment

error, this court “must reverse unless [it] find[s] this
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constitutional error harmless beyond a reasonable doubt, with the

Government bearing the burden of proving harmlessness.” Mackins,

315 F.3d at 405 (citations omitted); see United States v. White,

405 F.3d 208, 223 (4th Cir.) (discussing difference in burden of

proving that error affected substantial rights under harmless error

standard in Fed. R. App. P. 52(a), and plain error standard in Fed.

R. App. P. 52(b)), cert. denied, 126 S. Ct. 668 (2005).

In United States v. Booker, 543 U.S. 220, 125 S. Ct. 738

(2005), the Supreme Court held 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. 543

U.S. at ___, 125 S. Ct. at 746, 750 (Stevens, J., opinion of the

Court). The Court remedied the constitutional violation by

severing two statutory provisions, 18 U.S.C.A. § 3553(b)(1) (West

Supp. 2005) (requiring sentencing courts to impose a sentence

within the applicable guideline range), and 18 U.S.C.A. § 3742(e)

(West 2000 & Supp. 2005) (setting forth appellate standards of

review for guideline issues), thereby making the guidelines

advisory. Booker, 543 U.S. at ___, 125 S. Ct. at 756-67 (Breyer,

J., opinion of the Court). The Supreme Court also reaffirmed its

prior holding in Apprendi v. New Jersey, 530 U.S. 466 (2000), that

“[a]ny 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 a jury verdict must be admitted

by the defendant or proved to a jury beyond a reasonable doubt.”
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Booker, 543 U.S. at ___, 125 S. Ct. at 756 (Stevens, J., opinion of

the Court).

Alston contends that, under Blakely and Booker, the

district court violated his Sixth Amendment rights by relying on

his prior convictions when those convictions were not admitted by

him or submitted to a jury. We conclude, however, that his claim

is foreclosed by United States v. Thompson, 421 F.3d 278, 283-86

(4th Cir. 2005) (holding that nature and occasion of offenses are

facts inherent in convictions and those facts need not be alleged

in indictment or submitted to jury), petition for cert. filed, ___

U.S.L.W. ___ (U.S. Oct. 25, 2005) (No. 05-7266), and United

States v. Cheek, 415 F.3d 349, 350-51 (4th Cir.) (holding that

application of armed career criminal enhancement falls within

exception for prior convictions where facts were undisputed, making

it unnecessary to engage in further fact finding about a prior

conviction), cert. denied, 126 S. Ct. 640 (2005). We therefore

find no Sixth Amendment error in this case.

Accordingly, we affirm Alston’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