United States of America v.  Keith Ramon Allen, Jr.

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 03-4701 
KEITH RAMON ALLEN, JR.,
Defendant-Appellant. 
Appeal from the United States District Court
for the Southern District of West Virginia, at Beckley.
David A. Faber, Chief District Judge.
(CR-03-32)
Argued: February 3, 2006
Decided: May 5, 2006
Before NIEMEYER, MOTZ, and KING, Circuit Judges.
Affirmed by published opinion. Judge King wrote the opinion, in
which Judge Niemeyer and Judge Motz joined.
COUNSEL
ARGUED: Derrick Ward Lefler, GIBSON, LEFLER & ASSO-
CIATES, Princeton, West Virginia, for Appellant. John Lanier File,
Assistant United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Beckley, West Virginia, for Appellee. ON
BRIEF: Kasey Warner, United States Attorney, Beckley, West Vir-
ginia, for Appellee.

-- 1 of 16 --

OPINION
KING, Circuit Judge:
Keith Ramon Allen appeals from the 156-month sentence imposed
upon him in the Southern District of West Virginia, in August 2003,
on his conviction for distributing cocaine base. The court sentenced
Allen as a career offender, in accordance with § 4B1.1 of the United
States Sentencing Guidelines. On appeal, Allen contends that the
court erred in treating him as a career offender, and also maintains
that his sentence contravened the principles enunciated by the
Supreme Court in United States v. Booker, 543 U.S. 220 (2005). As
explained below, we affirm.
I.
On January 28, 2003, a federal grand jury in Charleston, West Vir-
ginia, returned a fourteen-count indictment charging Allen and others
with various controlled substance offenses. More specifically, the
indictment charged Allen with four crimes: three counts of distribut-
ing cocaine base, in contravention of 21 U.S.C. § 841(a)(1) (Counts
Two, Twelve, and Fourteen); and a single count of conspiring to dis-
tribute five or more grams of cocaine base, in violation of 21 U.S.C.
§ 846 (Count One). On April 7, 2003, pursuant to a plea agreement,
Allen pleaded guilty to the distribution offense alleged in Count Four-
teen, and the prosecution thereafter dismissed the charges leveled
against him in Counts One, Two, and Twelve.
Allen’s Presentence Report (the "PSR") was prepared and submit-
ted to the sentencing court on July 30, 2003.1 On the basis of Allen’s
offense of conviction, the PSR calculated his base offense level at 28
and his criminal history category as V. The PSR recommended, how-
ever, that Allen be deemed a career offender pursuant to § 4B1.1 of
the Guidelines, and that his base offense level and criminal history
category be set accordingly. Because Allen’s guilty plea was to an
offense carrying a statutory maximum sentence of twenty years of
1In calculating Allen’s recommended sentencing range, the PSR uti-
lized the 2002 edition of the Guidelines, and the sentencing court relied
on that edition in sentencing Allen.
2 UNITED STATES v. ALLEN

-- 2 of 16 --

imprisonment, see 21 U.S.C. § 841(b)(1)(C), the PSR recommended
calculating his base offense level as 32 and his criminal history cate-
gory as VI. See USSG § 4B1.1.
Both Allen and the Government filed written objections to the
PSR’s recommendations. As relevant here, Allen contended that he
was not eligible for career offender treatment because he did not have
two qualifying prior felony convictions, as required by § 4B1.1(a).
Pursuant thereto, a defendant qualifies for treatment as a career
offender if (1) he was at least eighteen years old when he committed
"the instant offense of conviction"; (2) "the instant offense of convic-
tion is a felony that is either a crime of violence or a controlled sub-
stance offense"; and (3) the defendant has "at least two prior felony
convictions of either a crime of violence or a controlled substance
offense." USSG § 4B1.1(a). Allen did not object to the PSR’s conclu-
sion that, in 2000, he had been convicted of three controlled substance
offenses in Surry County, North Carolina (the "2000 Convictions"),
and that, when appropriately aggregated, those convictions properly
counted as a single qualifying conviction under the career offender
Guideline. He maintained, however, that contrary to the PSR’s recom-
mendation, three earlier controlled substance convictions in North
Carolina in 1995 (the "1995 Convictions"), should not count for
career offender purposes.
Allen’s 1995 Convictions occurred when he was seventeen years
of age, and resulted from his August 17, 1995 guilty pleas in the
Superior Court of Surry County, North Carolina. Allen had been
indicted in Surry County on three counts of sale and delivery of
cocaine, and three counts of possession with intent to sell and deliver
cocaine, all in contravention of North Carolina General Statutes sec-
tion 90-95. Pursuant to a plea agreement with the state prosecutor, the
three counts of possession with intent to sell and deliver were consoli-
dated with the three sale and delivery charges, and his guilty pleas
yielded a total of three 1995 Convictions. On each of his three 1995
Convictions, Allen was sentenced to be "imprisoned" for six to eight
months, with the sentences to run consecutively. The Superior Court
suspended each of the three sentences, however, and placed Allen on
thirty months of supervised probation. In January 1996, Allen’s
period of supervision was revoked and he thereafter served eighteen
months in prison.
3 UNITED STATES v. ALLEN

-- 3 of 16 --

In contesting the PSR’s career offender recommendation to the
sentencing court, Allen maintained that his 1995 Convictions could
not be counted because they were not "adult convictions," as required
by § 4B1.1.2 He further urged the court to treat the 1995 Convictions
as irrelevant non-felonies. In his view, a prior conviction for an
offense committed before a defendant’s eighteenth birthday, even an
adult conviction, is not a "felony" within the meaning of the career
offender provision, unless the defendant actually received a sentence
of more than one year and one month imprisonment.3 Because Allen
received a six-to-eight-month sentence for each of his 1995 Convic-
tions, he asserted that the convictions were not felonies. Moreover,
Allen maintained that the convictions could not be aggregated (to
yield a total sentence of more than one year and one month) and
treated as a single qualifying felony.
Allen’s sentencing hearing was conducted in the district court on
August 14, 2003. At the hearing, Allen renewed his objection to the
PSR’s recommendation that he be treated as a career offender under
the Guidelines. The prosecutor, in support of the PSR’s recommenda-
tion, contended that the relevant North Carolina court records
revealed that Allen’s 1995 Convictions were for related conduct and
therefore should be aggregated as a single felony conviction for career
offender purposes. In support of the position that Allen’s 1995 Con-
victions were adult convictions, the United States Attorney proffered
the testimony of Jeffrey Gwinn, the probation officer who had pre-
2Application Note 1 to § 4B1.1 provides that "‘crime of violence,’
‘controlled substance offense,’ and ‘two prior felony convictions’ are
defined in § 4B1.2." USSG § 4B1.1, comment. (n.1). Application Note
1 to § 4B1.2, in turn, provides, as relevant here, that "‘[p]rior felony con-
viction’ means a prior adult federal or state conviction for an offense
punishable by death or imprisonment for a term exceeding one year, . . .
regardless of the actual sentence imposed." USSG § 4B1.2, comment.
(n.1).
3Allen’s position — that a prior conviction for a crime committed
before his eighteenth birthday was not a felony for career offender pur-
poses if he was not actually sentenced to more than one year and one
month imprisonment — was premised on Application Note 7 to § 4A1.2.
As relevant, Application Note 7 provides that "for offenses committed
prior to age eighteen, only those that resulted in adult sentences of
imprisonment exceeding one year and one month . . . are counted."
4 UNITED STATES v. ALLEN

-- 4 of 16 --

pared the PSR. J.A. 63.4 According to the proffer, Gwinn, if called at
the sentencing hearing, would have testified "that he spoke with
authorities in North Carolina who advised him that the [1995] cases
against [Allen] were adult cases, [and] were handled in adult court,
proceeded as though he were an adult," and that Allen "received adult
sentences in those cases." Id.
The sentencing court, in ruling on the career offender issue,
accepted the Government’s proffer of Gwinn’s testimony and over-
ruled Allen’s objection to the PSR’s career offender recommendation.
On the issue of whether Allen’s 1995 Convictions were juvenile con-
victions, the court observed that "Mr. Gwinn confirmed through offi-
cials in Surry County, North Carolina that the ‘95 convictions were,
in fact, considered as adult convictions," and it found that "even
though [Allen] was under eighteen at the time, the convictions count
as adult convictions." J.A. 65. Then, applying the standard we articu-
lated in United States v. Breckenridge, 93 F.3d 132 (4th Cir. 1996),5
the court concluded that at least the first two of the 1995 Convictions
could properly be aggregated to qualify as a single felony conviction
for purposes of § 4B1.1 of the Guidelines. J.A. 67-68. As an alterna-
tive to its Breckenridge ruling, the sentencing court determined that,
because each of Allen’s 1995 Convictions carried a potential punish-
4Our citations to "J.A. ___" refer to the contents of the joint appendix,
filed by the parties in this appeal.
5In Breckenridge, we considered whether a sentencing court should
have aggregated separate prior convictions and treated them as a single
conviction under the Guidelines, because the offenses underlying them
were "related," in that they were "part of a common scheme or plan." See
93 F.3d at 138. In so doing, we recognized eight factors that courts have
looked to in deciding whether separate offenses form part of a common
scheme or plan:
whether the crimes were committed within a short period of
time, in close geographic proximity, involved the same substan-
tive offense, were directed at a common victim, were solved dur-
ing the course of a single criminal investigation, shared a similar
modus operandi, were animated by the same motive, and were
tried and sentenced separately only because of an accident of
geography.
Id.
5 UNITED STATES v. ALLEN

-- 5 of 16 --

ment of more than one year of imprisonment, each of them indepen-
dently qualified as a "prior felony conviction" under § 4B1.1,
rendering any aggregation unnecessary. Id. at 68-69.
Accordingly, the sentencing court sentenced Allen under the career
offender provision, and it calculated his base offense level as 32. J.A.
72. After the court reduced his offense level by three points for accep-
tance of responsibility, Allen’s total offense level was 29, which,
combined with the criminal history category of VI mandated by the
court’s career offender finding, yielded a sentencing range of 151 to
188 months. Id. at 72-73.6 The court then imposed a sentence on
Allen of 156 months in prison. Id. at 75. In so doing, the court applied
the Guidelines in their then-mandatory form, and it did not indicate
what sentence it might have imposed under an advisory-Guidelines
scheme. Allen has timely appealed from his sentence, and we possess
jurisdiction pursuant to 18 U.S.C. § 3742 and 28 U.S.C. § 1291.
II.
In assessing a challenge to a sentencing court’s application of the
Guidelines, we review the court’s factual findings for clear error and
its legal conclusions de novo. See United States v. Ebersole, 411 F.3d
517, 535-36 (4th Cir. 2005). Because Allen has raised issues under
the Supreme Court’s Booker decision for the first time on appeal, we
review those issues for plain error only. See United States v. White,
405 F.3d 208, 215 (4th Cir. 2005).
III.
Allen’s appeal is limited to two challenges to his 156-month sen-
tence. First, he contends that he is entitled to resentencing because the
sentencing court misapplied the Guidelines when it treated him as a
6Count Fourteen of the indictment, to which Allen pleaded guilty, did
not allege a drug quantity, but charged Allen with distributing "a quantity
of cocaine base" in contravention of 21 U.S.C. § 841(a)(1). Absent either
a drug quantity finding or career offender enhancement, Allen’s base
offense level would have been 12, see USSG § 2D1.1(c)(14), which,
under the Guidelines, would have exposed him to a potential sentence of
no more than thirty-seven months in prison.
6 UNITED STATES v. ALLEN

-- 6 of 16 --

career offender. Specifically, he maintains that the court erred in con-
cluding that his 1995 Convictions, when he was seventeen years of
age, were adult convictions, and in concluding that those convictions
were felonies for career offender purposes. Second, he maintains that
he is entitled to be resentenced under the Supreme Court’s decision
in United States v. Booker, 543 U.S. 220 (2005), both because his
sentence violated the Sixth Amendment and because the sentencing
court erroneously applied the Guidelines as mandatory rather than as
advisory. As explained below, we reject each of these contentions and
affirm.
A.
Allen first contends that the sentencing court misapplied the Guide-
lines in treating him as a career offender. As explained above,
§ 4B1.1(a) of the Guidelines provides that a defendant is a career
offender if he satisfies three criteria:
(1) the defendant was at least eighteen years old at the time
[he] committed the instant offense of conviction; (2) the
instant offense of conviction is a felony that is either a crime
of violence or a controlled substance offense; and (3) the
defendant has at least two prior felony convictions of either
a crime of violence or a controlled substance offense.
Allen concedes that he was more than eighteen years old at the time
he committed his instant offense of conviction (December 31, 2002),
and that such offense (distribution of cocaine base) was a controlled
substance felony within the meaning of § 4B1.1. He further concedes
that his 2000 Convictions, when appropriately aggregated, may prop-
erly count as a prior felony controlled substance conviction for career
offender purposes. Allen maintains, however, that the sentencing
court erred in counting his 1995 Convictions for career offender pur-
poses. Although he concedes that his 1995 Convictions were for con-
trolled substance offenses, Allen maintains that they should not count
under the career offender provision of § 4B1.1 because (1) they are
not "adult" convictions, and (2) they should be viewed as three "non-
felonies" and disregarded, rather than counted as a single "felony," for
career offender purposes. We address these contentions in turn.
7 UNITED STATES v. ALLEN

-- 7 of 16 --

1.
First of all, we reject Allen’s contention that his 1995 Convictions
were not adult convictions for career offender purposes. At his sen-
tencing hearing, the prosecution proffered that probation officer
Gwinn would have testified "that he spoke with authorities in North
Carolina who advised him that the [1995] cases against [Allen] were
adult cases." Allen contends that the court erred in relying on that rep-
resentation, and in finding, on the basis thereof, that his 1995 Convic-
tions, when he was seventeen years old, were adult convictions.
The proffer of Gwinn’s testimony notwithstanding, the state court’s
records relating to Allen’s 1995 Convictions reveal that they were
adult convictions. Although a seventeen-year-old can be tried in
North Carolina as either a juvenile or an adult, see N.C. Gen. Stat.
§§ 7A-608, 610 (1995) (current version at N.C. Gen. Stat. §§ 7B-
2200, 2203 (2005)), North Carolina’s district courts possess "exclu-
sive, original jurisdiction over any case involving a juvenile who is
alleged to be delinquent," N.C. Gen. Stat. § 7A-523(a) (1995)
(emphasis added) (current version at N.C. Gen. Stat. § 7B-1601
(2005)). Thus, if Allen had been tried and convicted as a juvenile, he
could have been prosecuted only in a North Carolina district court.7
The judgments underlying Allen’s 1995 Convictions, however, dem-
onstrate that he was convicted and sentenced in the Superior Court of
Surry County, North Carolina,8 and his 1995 Convictions were there-
fore necessarily adult convictions. Accordingly, the sentencing court
was correct in finding that Allen’s 1995 Convictions were adult convic-
tions.9
7In North Carolina, "[t]he General Court of Justice constitutes a uni-
fied judicial system for purposes of jurisdiction, operation and adminis-
tration, and consists of an appellate division, a superior court division,
and a district court division." N.C. Gen. Stat. § 7A-4 (2005).
8The conviction and sentencing records for Allen’s 1995 Convictions
in the Superior Court of Surry County were of record in the sentencing
court. The documents we refer to as the "judgments" underlying the 1995
Convictions are each entitled "Judgment Suspending Sentence — Fel-
ony."
9We sustain the sentencing court’s finding that Allen’s 1995 Convic-
tions were adult convictions without considering the Gwinn proffer, and
we thus need not decide whether the Guidelines authorized the sentenc-
ing court to rely on the proffer.
8 UNITED STATES v. ALLEN

-- 8 of 16 --

2.
Turning next to Allen’s contention that his 1995 Convictions
should properly be viewed as three non-felony convictions under the
career offender provision, we reject that contention as well. A "con-
trolled substance offense," for career offender purposes, is "an offense
. . . punishable by imprisonment for a term exceeding one year, that
prohibits" manufacturing, importing, exporting, distributing, or dis-
pensing a controlled substance. USSG § 4B1.2(b) (emphasis added).
And Application Note 1 to § 4B1.2 provides that a "‘[p]rior felony
conviction’ means a prior adult federal or state conviction for an
offense punishable by death or imprisonment for a term exceeding
one year, . . . regardless of the actual sentence imposed." USSG
§ 4B1.2, comment. (n.1) (emphasis added). Relying on what is
denominated as the "Transcript of Plea" for Allen’s 1995 Convictions
in the Superior Court, the sentencing court found, and Allen does not
dispute, that each of those convictions carried a potential sentence of
thirty months of imprisonment.10 In applying Application Note 1 to
§ 4B1.2, the court concluded that each of the 1995 Convictions con-
stitutes a prior felony conviction under the career offender provision
because each was punishable by more than one year of imprisonment.
On appeal, Allen maintains that the sentencing court was obliged
to apply § 4A1.2, entitled "Definitions and Instructions for Comput-
ing Criminal History," in deciding whether to treat him as a career
offender. In reliance thereon, he maintains that a felony conviction for
an offense committed prior to age eighteen is not a "prior felony con-
viction," unless the defendant was actually sentenced to more than
one year and one month of imprisonment, pursuant to § 4A1.2(d)(1).
See also USSG § 4A1.2, comment. (n.7) ("[F]or offenses committed
prior to age eighteen, only those that resulted in adult sentences of
imprisonment exceeding one year and one month . . . are counted.").
Because Allen was sentenced to a six-to-eight-month term of impris-
10The "Transcript of Plea" on Allen’s 1995 Convictions is not a verba-
tim transcription of Allen’s 1995 Superior Court plea proceedings, but is
a standardized, two-page document that reflects the substance of his plea
colloquy. The Transcript of Plea, dated August 15, 1995, was signed by
Allen, his attorney, the district attorney, and the presiding Superior Court
judge.
9 UNITED STATES v. ALLEN

-- 9 of 16 --

onment for each of his 1995 Convictions, he asserts that none of the
convictions was a "felony" for career offender purposes. In support of
his reading of the Guidelines, Allen relies on our decisions in United
States v. Bacon, 94 F.3d 158 (4th Cir. 1996), and United States v.
Mason, 284 F.3d 555 (4th Cir. 2002). As explained below, however,
neither of those precedents supports his position.
In our Bacon decision, we concluded that a sentencing court could
not, by finding that a defendant was actually innocent of the offense
relating to the prior conviction, decline to sentence him as a career
offender under § 4B1.1. See 94 F.3d at 161. Neither § 4B1.1 nor its
definitional provision, § 4B1.2, addressed whether a defendant could
use his federal sentencing proceeding to collaterally attack a prior
state conviction. Thus, in accordance with the commentary to § 4B1.2
that "[t]he provisions of § 4A1.2 . . . are applicable to the counting
of convictions under § 4B1.1," see USSG § 4B1.2, comment. (n.3)
("Application Note 3"),11 we sought guidance from § 4A1.2. See
Bacon, 94 F.3d at 161. Because § 4A1.2 generally requires a sentenc-
ing court to count prior convictions that have not been reversed,
vacated, or invalidated, we ruled that the sentencing court had erred
in permitting Bacon to collaterally attack his prior state conviction.
See id. at 164.
In Mason, we had occasion to consider whether a prior state con-
viction is an "adult conviction," within the meaning of the career
offender provision, if the defendant, even though convicted as an
adult, was sentenced as a juvenile. See 284 F.3d at 558. As §§ 4B1.1
and 4B1.2 did not contemplate that a juvenile sentence could flow
from an adult conviction, we again followed Application Note 3’s
directive and looked to § 4A1.2. In reliance thereon, we were obliged
to conclude that Mason’s prior conviction was not an adult conviction
because he had not received an adult sentence. See id. at 558-62.
11In Bacon, we applied the 1994 edition of the Guidelines and, in that
edition, the provision that is presently found in Advisory Note 3 to
§ 4B1.2 was contained, in haec verba, in Application Note 4. To avoid
confusion, we refer consistently to that provision as "Application Note
3."
10 UNITED STATES v. ALLEN

-- 10 of 16 --

Allen, relying on Application Note 3, as interpreted and applied in
Bacon and Mason, maintains that we should be guided by § 4A1.2 in
assessing whether his 1995 Convictions constitute "felony" convic-
tions for career offender purposes. Allen takes this position notwith-
standing the fact that Application Note 1 to § 4B1.2 defines a "[p]rior
felony conviction" as "a prior adult federal or state conviction for an
offense punishable by death or imprisonment for a term exceeding
one year, . . . regardless of the actual sentence imposed." USSG
§ 4B1.2, comment. (n.1) (emphasis added). In Allen’s view, then, a
court deciding whether to sentence a defendant as a career offender
(under §§ 4B1.1 and 4B1.2) is obliged to ignore any provision of
§§ 4B1.1 and 4B1.2 that conflicts with § 4A1.2.
Application Note 3, however, does not require such an anomalous
result; it merely directs a sentencing court, in applying the career
offender provision, to look to § 4A1.2 to resolve issues not addressed
by §§ 4B1.1 and 4B1.2. Thus, because both Bacon and Mason
addressed issues not resolved by §§ 4B1.1 and 4B1.2, we were guided
by § 4A1.2. In this appeal, by contrast, we need not look beyond the
career offender provision. Section 4B1.2 defines "prior felony convic-
tion" as a prior adult conviction for an offense punishable by more
than one year of imprisonment. USSG § 4B1.2, comment. (n.1).
Accordingly, § 4B1.2 mandates that Allen’s 1995 Convictions, each
of which was an adult conviction that carried a potential sentence of
thirty months of imprisonment, be deemed "felonies" for career
offender purposes, leaving nothing to be resolved by § 4A1.2. The
sentencing court thus correctly counted Allen’s 1995 Convictions as
at least one qualifying prior conviction for career offender purposes,
and it did not misapply the Guidelines in sentencing Allen as a career
offender.12
12In this appeal, Allen also challenges the sentencing court’s finding
that the first two of his 1995 Convictions were part of a common scheme
or plan, pursuant to our decision in United States v. Breckenridge, 93
F.3d 132 (4th Cir. 1996), and the court’s aggregation of the sentences
imposed in connection with those convictions, to achieve a total sentence
of sixteen months of imprisonment. Because the court did not need to
aggregate the 1995 Convictions in order to sentence Allen as a career
offender, we need not address the Breckenridge issue.
11 UNITED STATES v. ALLEN

-- 11 of 16 --

B.
In his second appellate contention, Allen relies on United States v.
Booker, 543 U.S. 220 (2005), and contends that he is entitled to be
resentenced because the sentencing court contravened the Sixth
Amendment in treating him as a career offender, and also because the
court erroneously applied the Guidelines as mandatory. As Allen
raises his Booker issues for the first time on appeal, our review of
them is for plain error only. See United States v. White, 405 F.3d 208,
215 (4th Cir. 2005). Pursuant to the plain-error test, Allen is unable
to secure appellate relief unless he can demonstrate that (1) the sen-
tencing court erred, (2) such error was plain, and (3) the error affected
his substantial rights. See id. (citing Fed. R. Crim. P. 52(b) and United
States v. Olano, 507 U.S. 725, 732 (1993)). Even then, the correction
of plain error is a matter within our discretion, "which we should not
exercise unless the error seriously affects the fairness, integrity or
public reputation of judicial proceedings." Id. (quoting Olano, 507
U.S. at 732) (internal quotation marks and alterations omitted).
1.
In its Booker decision, in early 2005, the Supreme Court recog-
nized that the Sixth Amendment is contravened when a court finds
"[a]ny fact (other than a prior conviction) which," under mandatory
sentencing guidelines, "is necessary to support a sentence exceeding
the maximum authorized by the facts established by a plea of guilty
or a jury verdict." See 543 U.S. at 244. The facts admitted by Allen
in his guilty plea in the district court would normally have authorized
a Guidelines sentence of no more than thirty-seven months; as a
career offender, Allen received a sentence of 156 months. Because the
court’s application of the career offender provision depended upon its
factual findings, its decision to treat Allen as a career offender was,
unless its factfinding fell within the "prior conviction exception" rec-
ognized in Booker, plainly erroneous. See United States v. Hughes,
401 F.3d 540, 547-48 (4th Cir. 2005).
Subsequent to Booker, in Shepard v. United States, the Court wres-
tled with, but did not fully delineate, the scope of the prior conviction
exception. See 544 U.S. 13, 125 S. Ct. 1254 (2005). Shepard involved
an issue relating to judicial factfinding under the Armed Career Crim-
12 UNITED STATES v. ALLEN

-- 12 of 16 --

inal Act, 18 U.S.C. § 924(e) (the "ACCA"), which mandates a sen-
tencing enhancement if a defendant has three prior convictions for
serious controlled substance offenses or violent felonies. See Shepard,
125 S. Ct. at 1257. On solely statutory grounds, the Court held that,
when the prior conviction has resulted from a guilty plea, the ACCA
limits the sentencing court’s factfinding authority to the "necessarily
admitted elements of the generic offense," including "the terms of the
charging document, the terms of a plea agreement or transcript of col-
loquy between judge and defendant in which the factual basis for the
plea was confirmed by the defendant, or . . . some comparable judicial
record of this information." Id. at 1263. A plurality of the Justices in
Shepard suggested that the Court’s ruling was informed by "[t]he rule
of reading statutes to avoid serious risks of unconstitutionality," spe-
cifically the Sixth Amendment concerns raised by a judicial factfind-
ing process that increases a defendant’s permissible sentence. Id. at
1262-63 (plurality opinion).13
Soon after Shepard was decided, in United States v. Washington,
we applied the principles enunciated in Booker and Shepard, and
determined that the Sixth Amendment is contravened when disputed
issues of fact, "not necessarily determined in the earlier proceeding,"
and which increase the defendant’s permissible sentence, are resolved
by a court rather than a jury. See 404 F.3d 834, 842-43 (4th Cir.
2005). In other words, we recognized that the Sixth Amendment’s
prior conviction exception authorizes a sentencing court, without a
jury, to look only to those sources approved by Shepard in making
factual findings about a prior conviction that resulted from a guilty
plea.
As explained above, the sentencing court enhanced Allen’s sen-
tence under the Guidelines’ career offender provision on the basis of
its finding that he had at least two prior felony convictions for con-
trolled substance offenses — one for his 2000 Convictions, and
13Although the Sixth Amendment portion of Shepard was rendered by
a four-justice plurality only, Justice Thomas filed a concurring opinion
contending that the prior convictions exception should be extinguished,
a view of the Sixth Amendment even stronger than that expressed by the
plurality. See Shepard, 125 S. Ct. at 1263-64 (Thomas, J., concurring in
part and concurring in the judgment).
13 UNITED STATES v. ALLEN

-- 13 of 16 --

another for his 1995 Convictions. Allen’s challenge here is limited to
his 1995 Convictions, and the court made two critical findings in con-
nection therewith: (1) that the 1995 Convictions were adult convic-
tions; and (2) that they constituted prior felony convictions because
they were each punishable by imprisonment for more than one year.
See USSG § 4B1.1.
In finding that Allen’s 1995 Convictions were adult convictions,
the sentencing court relied on probation officer Gwinn’s proffered
testimony "that he spoke with authorities in North Carolina who
advised him that the [1995] cases against [Allen] were adult cases."
The court’s reliance on that proffer increased Allen’s permissible sen-
tence, and such a proffer is not among the evidentiary sources
approved by the Court in Shepard for judicial factfinding on a prior
conviction. See Shepard, 125 S. Ct. at 1263 (limiting judicial factfind-
ing process to "the terms of the charging document, the terms of a
plea agreement or transcript of colloquy between judge and defendant
in which the factual basis for the plea was confirmed by the defen-
dant, or . . . some comparable judicial record of this information");
Washington, 404 F.3d at 842-43 (recognizing Shepard’s limits on
judicial factfinding process as constitutionally mandated). Accord-
ingly, the court’s reliance on the Government’s proffer of Gwinn’s
testimony constituted an error that was plain. See Hughes, 401 F.3d
at 547-48.
Allen is not entitled to plain-error relief, however, unless he can
further establish that the error prejudiced him by affecting his sub-
stantial rights. As we have observed, the prejudice inquiry under the
plain error test focuses "‘on whether the error itself had a substantial
influence’" on the underlying proceeding. See Hughes, 401 F.3d at
550 (quoting Kotteakos v. United States, 328 U.S. 750, 765 (1946)).
Drawing on our earlier decisions in United States v. Promise, 255
F.3d 150 (4th Cir. 2001) (en banc), and United States v. Angle, 254
F.3d 514 (4th Cir. 2001) (en banc), we concluded in Hughes that "the
prejudice inquiry in the case of a Sixth Amendment violation" under
Booker "is whether the district court could have imposed the sentence
it did without exceeding the relevant Sixth Amendment limitation."
See 401 F.3d at 550-51. A corollary of that rule is that a defendant
cannot show prejudice from a finding of fact, made in contravention
14 UNITED STATES v. ALLEN

-- 14 of 16 --

of the Sixth Amendment, if that fact would nevertheless have been
found by the court in the absence of the error.
And in the present appeal, even if the sentencing court had not
accepted the Gwinn proffer, it would, in any event, have found
Allen’s 1995 Convictions to be adult convictions. In order to decide
if Allen was a career offender, the court was required to assess
whether his 1995 Convictions were adult convictions. In conducting
that inquiry, the Sixth Amendment authorized the court to look to the
charging documents, the factual bases of Allen’s guilty pleas, and any
"comparable judicial record[s]" relating to the 1995 Convictions. See
Shepard, 125 S. Ct. at 1263; Washington, 404 F.3d at 842-43. As
explained above, see supra Part III.A.1, the judgments underlying
Allen’s 1995 Convictions reveal that they could not have been other
than adult convictions, as the presiding court — the Superior Court
of Surry County — lacked jurisdiction to entertain juvenile delin-
quency proceedings. See N.C. Gen. Stat. § 7A-523(a) (1995) (current
version at N.C. Gen. Stat. § 7B-1601 (2005)).14 Had the sentencing
court limited itself to constitutionally permissible evidence concern-
ing Allen’s 1995 Convictions, it would have been obliged to find as
it did. Accordingly, the court would necessarily have found that
Allen’s 1995 Convictions were adult convictions, and Allen thus was
not prejudiced by the court’s reliance on the Gwinn proffer. See
Hughes, 401 F.3d at 550-51.
Moreover, contrary to Allen’s contention on appeal, the sentencing
court did not commit Sixth Amendment error in finding that his 1995
Convictions were felony convictions. As explained above, an adult
conviction qualifies as a "felony" for career offender purposes if it is
punishable by more than one year of imprisonment. Each of Allen’s
1995 Convictions was for a violation of North Carolina General Stat-
utes section 90-95. And Allen does not dispute that, in 1995, a con-
viction under section 90-95 carried a potential punishment of thirty
14The judgments underlying Allen’s 1995 Convictions are judicial
records comparable to the charging documents and the factual bases for
the 1995 guilty pleas. They therefore fall within the prior conviction
exception of Booker, to the extent they disclose facts necessarily decided
in connection with Allen’s 1995 Convictions. See Shepard, 125 S. Ct. at
1263; Washington, 404 F.3d at 842-43.
15 UNITED STATES v. ALLEN

-- 15 of 16 --

months in prison. The sentencing court thus did not contravene the
Sixth Amendment when, on the basis of the Transcript of Plea in the
Superior Court of Surry County, it found that each of Allen’s 1995
Convictions was punishable by more than one year in prison, and thus
constituted a felony within the meaning of the career offender provi-
sion. See Shepard, 125 S. Ct. at 1263; Washington, 404 F.3d at 842-
43. Accordingly, the sentencing court did not reversibly err in count-
ing the 1995 Convictions as at least one qualifying prior conviction
under the Guidelines’ career offender provision, and then treating
Allen as a career offender.
2.
Finally, we must assess whether the sentencing court’s error in
treating the Guidelines as mandatory entitles Allen to a new sentenc-
ing hearing. Although the court’s mandatory application of the Guide-
lines was plainly erroneous, see Booker, 543 U.S. at 245, 268; White,
405 F.3d at 217, the record of Allen’s sentencing proceeding "pro-
vides no nonspeculative basis for concluding that the treatment of the
[G]uidelines as mandatory affected the [sentencing] court’s selection
of the sentence imposed," see White, 405 F.3d at 223 (internal quota-
tion marks and alteration omitted). Accordingly, Allen cannot sustain
his burden of showing that the court’s mandatory application of the
Guidelines affected his substantial rights, and he is not entitled to
relief from his sentence on that basis. See id.
IV.
Pursuant to the foregoing, we reject Allen’s appellate contentions
and affirm the sentence imposed upon him in the district court.
AFFIRMED
16 UNITED STATES v. ALLEN

-- 16 of 16 --