UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-5039
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
MACK DANIEL BARTON,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. Frank W. Bullock, Jr.,
Senior District Judge. (CR-05-100)
Submitted: May 18, 2006 Decided: May 26, 2006
Before WIDENER and WILKINSON, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Louis C. Allen, 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Unpublished opinions are not binding precedent in this circuit.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:
Mack Daniel Barton pled guilty to possession of a firearm
by a convicted felon, 18 U.S.C. § 922(g)(1) (2000) (Count One),
possession of 8.4 grams of cocaine base (crack) with intent to
distribute, 21 U.S.C.A. § 841(a), (b)(1)(B) (West 1999 & Supp.
2005) (Count Three), and possession of a firearm in furtherance of
a drug trafficking crime, 18 U.S.C.A. § 924(c) (West 2000 & Supp.
2005) (Count Six). Barton was sentenced to a term of seventy-eight
months imprisonment, with a consecutive five year sentence for the
§ 924(c) offense. He argues on appeal that his sentence violates
the Fifth and Sixth Amendments because the district court assessed
criminal history points for certain prior criminal sentences, and
another two points because he was on probation when he committed
the instance offenses, although the supporting facts were not
charged in the indictment or admitted by him. We affirm.
Barton did not dispute the fact of his prior convictions
or the sentences he received, nor the fact that he was on probation
when he committed the instant offenses. The fact of a prior
conviction need not be proven beyond a reasonable doubt.
Almendarez-Torres v. United States, 523 U.S. 224, 233-36, 243-44
(1998); United States v. Cheek, 415 F.3d 349, 351-54 (4th Cir.)
(reaffirming continuing validity of Almendarez-Torres after United
States v. Booker, 543 U.S. 220 (2005)), cert. denied, 126 S. Ct.
640 (2005). Thus the district court was not required to make any
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factual findings concerning Barton’s prior record or his status at
the time of the instant offenses, but could rely on “the conclusive
significance” of his record, see Shepard v. United States, 544 U.S.
13, 25 (2005), as set out in the presentence report. See United
States v. Thompson, 421 F.3d 278, 285 (4th Cir. 2005) (sentencing
judge entitled to rely on undisputed information in presentence
report that “bears the earmarks of derivation from Shepard-approved
sources such as the indictments and state-court judgments from
[defendant’s] prior convictions”), cert. denied, 126 S. Ct. 1463
(2006). Therefore, we conclude that the district court did not
violate Barton’s Fifth or Sixth Amendment rights when it considered
his legal status and prior convictions in determining his sentence
and that the sentence was reasonable.
We therefore affirm the sentence imposed by the district
court. 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
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