UNITED STATES of America, Plaintiff-Appellee, v. Peter HENSON, Defendant-Appellant, 45 F. App'x 263

OPINION PER CURIAM. Peter Henson appeals his sixty-month sentence entered after remand for resentencing on his guilty plea to receiving or distributing in excess of one hundred pictures depicting minors engaged in sexually explicit conduct, in violation of 18 U.S.C. § 2252 (2000). At his resentencing, Henson’s guideline range was calculated at thirty-seven to forty-six months. However, because Henson had a prior conviction, he was sentenced to sixty months’ imprisonment, based on the mandatory minimum under § 2252(b)(1).

He now appeals the sentence, arguing that application of the mandatory minimum violated Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), because his prior conviction was not charged in the indictment. The Supreme Court held in Apprendi that, other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be charged in the indictment, submitted to a jury, and proved beyond a reasonable doubt. 530 U.S. at 490. We find that Apprendi is inapplicable to the present case.

First, Apprendi specifically excluded enhancements which are based on prior convictions from its holding. Id. Because the mandatory minimum challenged in this case was based on Henson’s prior conviction, Apprendi is not applicable. Second, Apprendi does not apply to facts which increase the mandatory minimum so long as the sentence is not extended beyond the statutory maximum. Harris v. United States, — U.S. —, 122 S.Ct. 2406, 2414, 153 L.Ed.2d 524 (2002).

Section 2252(b)(1) provides for a maximum sentence of fifteen years for violation of § 2252(a), where the defendant does not have a prior conviction. Since Henson was sentenced to five years, well below the statutory maximum with no enhancement, there is no Apprendi error. See id.; see also United States v. Angle, 254 F.3d 514, 518 (4th Cir.), cert. denied, - U.S. -, 122 S.Ct. 309, 151 L.Ed.2d 230 (2001). Thus, we affirm Henson’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. Application of the mandatory minimum was not an issue at Henson’s first sentencing since even the low end of his guideline range exceeded the statutory minimum.