UNITED STATES of America, Appellee, v. Howard SMITH, Jr., Appellant, 172 F. App'x 132

PER CURIAM. Howard Smith, Jr., pleaded guilty to two counts of possessing 5 or more grams of a mixture containing cocaine base with intent to distribute, in violation of 21 U.S.C. § 841(a)(1). Because an uncontested prior felony drug conviction subjected Smith to statutory minimum penalties, see 21 U.S.C. § 841(b)(1)(B), the district court sentenced Smith to 10 years in prison on both counts — to run concurrently with each other and another federal prison term — and 8 years supervised release. On appeal, Smith’s counsel moves to withdraw and files a brief under Anders v.

California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), arguing that Smith’s sentence is unconstitutional under Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), because there was no jury finding as to his prior drug conviction. In a supplemental brief, Smith argues that his sentence is unconstitutional under Blakely because it was increased to the statutory minimum based on drug quantities in excess of what he admitted. We conclude these arguments lack merit. Smith’s sentence was based on an uncontested prior felony drug conviction and drug quantities he admitted.

See 21 U.S.C. § 841(b)(1)(B) (imposing 10-year mandatory minimum for 5 grams or more of cocaine, if instant offense was committed after prior conviction for felony drug offense has become final); United States v. Alvarado-Rivera, 412 F.3d 942, 946 n. 3 (8th Cir.2005) (en banc) (defendant’s Sixth Amendment rights are not violated if defendant admitted responsibility for drug quantity), cert. denied, — U.S.-, 126 S.Ct. 1096, — L.Ed.2d-(2006); United States v.

Thomas, 398 F.3d 1058, 1063-64 (8th Cir.2005) (use of prior felony conviction to increase statutory minimum penalties does not implicate Blakely or United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005)). Having reviewed the record independently under Penson v. Ohio, 488 U.S. 75, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988), we find no nonfrivolous issues. Accordingly, we affirm, and we grant counsel’s motion to withdraw. . The Honorable Rodney W. Sippel, United States District Judge for the Eastern District of Missouri.