United States of America v. Booker, 125 S. Ct. 738 2005 , issued. We consider his appeal in light of Booker. - 2…

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4796
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
DAVID PASCHELL SHABAZZ,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. W. Earl Britt, Senior
District Judge. (CR-03-315)
Submitted: April 25, 2005 Decided: May 4, 2005
Before LUTTIG, MOTZ, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon,
Assistant Federal Public Defender, 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Unpublished opinions are not binding precedent in this circuit.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).

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*Shabazz filed his opening brief shortly before the decision
in United States v. Booker, 125 S. Ct. 738 (2005), issued. We
consider his appeal in light of Booker.
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PER CURIAM:
David Paschell Shabazz pled guilty without a plea
agreement to being a felon in possession of a firearm under 18
U.S.C. § 922(g). Shabazz was sentenced to 96 months imprisonment
followed by three years of supervised release. The district court
also specified, pursuant to this court’s recommendation in United
States v. Hammoud, 378 F.3d 426 (4th Cir. 2004) (order), opinion
issued by 381 F.3d 316, 353-54 (4th Cir.) (en banc), cert. granted
and judgment vacated, 125 S. Ct. 1051 (2005), an identical
alternative sentence if the guidelines were not mandatory.
On appeal, Shabazz cites Blakely v. Washington, 124 S.
Ct. 2531 (2004),* for the proposition that the court erred in
finding that an enhancement to the base offense level (for having
at least two prior felony convictions of either a crime of violence
or a controlled substance offense) applied to his case. We find
that this judicial finding falls within the prior conviction
exception, and, accordingly, there is no error. See Booker, 125 S.
Ct. at 750-51; Apprendi v. New Jersey, 530 U.S. 466, 476 (2000).
We further find that because the alternative sentence the
district court pronounced (in the event the federal sentencing
guidelines were invalidated) was identical to the mandatory
sentence imposed under the federal sentencing guidelines as they

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existed at that time, any error resulting from the sentence imposed
by the district court was harmless. Accordingly, we affirm
Shabazz’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

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