Rehearing granted, December 13, 2006
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4043
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
WILLIAM GLENN CASTEVENS,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. James A. Beaty, Jr.,
District Judge. (CR-04-268)
Submitted: March 8, 2006 Decided: March 21, 2006
Before LUTTIG, WILLIAMS, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Louis C. Allen, III, Federal Public Defender, William C. Ingram,
First Assistant Federal Public Defender, Greensboro, North
Carolina, for Appellant. Anna Mills Wagoner, United States
Attorney, Michael F. Joseph, Assistant United States Attorney,
Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
William Glenn Castevens pled guilty to being a felon in
possession of a firearm, in violation of 18 U.S.C. § 922(g)(1)
(2000). He was sentenced to forty months in prison. Castevens now
appeals his sentence. We affirm.
I
Following Castevens’ conviction, a presentence report
(psr) was prepared. The base offense level was 20. See U.S.
Sentencing Guidelines Manual § 2K2.1(a)(4)(A) (2004). After a
three-level decrease for acceptance of responsibility, see USSG
§ 3E1.1(b), the total offense level was 17. Castevens’ criminal
history category was IV, and his resulting guideline range was 37-
46 months.
Castevens filed written objections to the psr. He
asserted that the calculation of his base offense level and his
placement in criminal history category IV violated the Sixth
Amendment under Blakely v. Washington, 542 U.S. 296 (2004).
At sentencing, Castevens abandoned his Blakely objection
to the base offense level calculation. The district court adopted
the psr without change and sentenced Castevens to forty months in
prison. The court also calculated a “Blakely guideline range” of
21-27 months, based upon a total offense level of 12 and a criminal
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history category of IV, and imposed an alternate Blakely sentence
of twenty-four months.
II
On appeal, Castevens first claims that his placement in
criminal history category IV violated the Sixth Amendment under
United States v. Booker, 543 U.S. 220, 125 S. Ct. 738 (2005), and
Blakely. Our review is de novo. See United States v. Mackins, 315
F.3d 399, 405 (4th Cir. 2003).
The Supreme Court in Booker reaffirmed the prior
conviction exception of Almendarez-Torres v. United States, 523
U.S. 224 (1998). Booker, 125 S. Ct. at 756. That exception
remains good law. We held after Booker that the Sixth Amendment
does not require the fact of a conviction to be submitted to the
jury or admitted by the defendant for it to serve as the basis of
a sentence enhancement. United States v. Cheek, 415 F.3d 349, 352
(4th Cir.), cert. denied, 126 S. Ct. 640 (2005). Furthermore,
where, as here, the defendant does not dispute any facts related to
his prior conviction, the district court’s determination of the
criminal history category does not violate the Sixth Amendment.
See Shepard v. United States, 544 U.S. 13, , 125 S. Ct. 1254,
1263 (2005); United States v. Thompson, 421 F.3d 278, 285-86 (4th
Cir. 2005), cert. denied, __ U.S. __, 2006 WL 521274 (U.S. Mar. 6,
2006) (No. 05-7266). Under these authorities, Castevens’ placement
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in criminal history category IV did not violate the Sixth
Amendment.
III
Castevens claims for the first time on appeal that the
district court erred by treating the guidelines as mandatory rather
than advisory, as Booker requires. This claim is reviewed for
plain error. See United States v. Olano, 507 U.S. 725, 732 (1993).
Because there is no nonspeculative basis suggesting that the
district court would have sentenced Castevens differently had the
guidelines been treated as advisory, we conclude that the court’s
plain error did not affect Castevens’ substantial rights, and we
decline to recognize the error. See United States v. White, 405
F.3d 208, 224-25 (4th Cir.), cert. denied, 126 S. Ct. 668 (2005).*
IV
We accordingly affirm. We dispense with oral argument
because the facts and legal contentions are adequately presented in
*
The district court announced an alternate sentence, presuming
that the base offense level of 20 might be an incorrect calculation
under Blakely. The court determined that the offense level might be
12 and found that Castevens’ guideline range in such a case would
be 21-27 months. The court imposed an alternative sentence of
twenty-four months. In imposing the alternative sentence, however,
the court continued to treat the guidelines as mandatory rather
than advisory. Thus, the alternative sentence in no way suggests
that the court would have sentenced Castevens to a different
sentence under an advisory guideline scheme.
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the materials before the court and argument would not aid the
decisional process.
AFFIRMED
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