UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 04-4836

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

BRIAN LEE CORBETT,

Defendant - Appellant.

Appeal from the United States District Court for the Southern

District of West Virginia, at Charleston. Joseph Robert Goodwin,

District Judge. (CR-03-187)

Submitted: September 21, 2005 Decided: September 30, 2005

Before WILKINSON, NIEMEYER, and WILLIAMS, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Tim C. Carrico, CARRICO LAW OFFICES, LC, Charleston, West Virginia,

for Appellant. Charles T. Miller, Acting United States Attorney,

John L. File, Assistant United States Attorney, Beckley, West

Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

See Local Rule 36(c).
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PER CURIAM:

Brian Lee Corbett appeals his 46-month sentence, imposed

pursuant to his guilty plea to various drug and firearm offenses.

On appeal, he challenges the drug quantity attributed to him and

the use of his prior convictions to enhance his base offense level

and calculate his criminal history category under Blakely v.

Washington, 542 U.S. 296 (2004). He also asserts that his term of

supervised release violated Blakely. Finding no error, we affirm.

In United States v. Booker, 125 S. Ct. 738, 746 (2005),

the Supreme Court held that Blakely applied to the federal

sentencing guidelines and that the mandatory manner in which the

guidelines required courts to impose sentencing enhancements based

on facts found by the court by a preponderance of the evidence

violated the Sixth Amendment. Thus, when a defendant pleads guilty

and is sentenced under the mandatory guidelines scheme, “[a]ny fact

(other than a prior conviction) which is necessary to support a

sentence exceeding the maximum authorized by the facts established

by [the] plea of guilty . . . must be admitted by the defendant.”

Id. at 756. Because Corbett objected below, we review de novo.

See United States v. Mackins, 315 F.3d 399, 405 (4th Cir. 2003).

With regard to the drug quantity, Corbett was sentenced

for three ounces of cocaine powder, which he alleges was not

authorized by either the charging instrument or his admissions at

the Fed. R. Crim. P. 11 hearing. However, the record belies
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Corbett’s contentions. Corbett clearly admitted to involvement

with more than three ounces of cocaine powder. The three ounces

for which he was held responsible were involved in two transactions

which Corbett described in detail at his Rule 11 hearing. Because

Corbett was properly sentenced based on his admissions, there is no

Booker error.

Turning to Corbett’s prior convictions, Corbett

challenges their use in calculating his criminal history and

setting his base offense level, since he did not make any

admissions in this regard. In Shepard v. United States, 125 S. Ct.

1254 (2005), the Supreme Court instructed that Sixth Amendment

protections apply to disputed facts about a prior conviction that

are not evident from “the conclusive significance of a prior

judicial record.” Id. at 1262-63. Here, Corbett did not contest

any facts about his prior convictions; rather, his is a purely

legal argument. Therefore, the district court did not consider any

facts he had not admitted, and the court’s determination of his

base offense level and criminal history category did not violate

the Sixth Amendment. See United States v. Collins, 412 F.3d 515,

522-23 (4th Cir. 2005) (finding no Sixth Amendment violation where

nature and separateness of predicate offenses for career offender

status were undisputed).

Finally, Corbett asserts that Blakely invalidated the

Sentencing Reform Act, and hence, the district court lacked the
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authority to impose a term of supervised release. However, Booker

makes clear that Blakely did not invalidate the Sentencing Reform

Act in its entirety; instead, the Supreme Court excised two

provisions related to the mandatory nature of the guidelines and

left the rest of the Act intact. See Booker, 125 S. Ct. at 756-57.

Specifically, the Court did not invalidate 18 U.S.C.A. § 3583 (West

2000 & Supp. 2005), the provision which authorizes imposition of a

term of supervised release. Moreover, a three-year term of

supervised release is required under 21 U.S.C.A. § 841(b)(1)(C)

(West Supp. 2005). Therefore, the district court did not err in

imposing a term of supervised release.

Accordingly, we affirm Corbett’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