UNITED STATES of America, Plaintiff-Appellee, v. David Paschell SHABAZZ, Defendant-Appellant, 127 F. App'x 662

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. Hammond, 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,—U.S.-, 125 S.Ct. 1051, 160 L.Ed.2d 997 (2005), an identical alternative sentence if the guidelines were not mandatory.

On appeal, Shabazz cites Blakely v. Washington,— U.S.-, 124 S.Ct. 2531, 159 L.Ed.2d 403 (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, 120 S.Ct. 2348, 147 L.Ed.2d 435 (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 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 Shabazz filed his opening brief shortly before the decision in United States v. Booker,-U.S.-, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), issued. We consider his appeal in light of Booker.