                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 09-4051


UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

             v.

JAMES TYSON HERRING,

                  Defendant – Appellant.



Appeal from the United States District Court for the Middle
District of North Carolina, at Winston-Salem.    James A. Beaty,
Jr., Chief District Judge. (1:07-cr-00406-JAB-1)


Submitted:    July 22, 2009                 Decided:   August 5, 2009


Before GREGORY and AGEE, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


Christopher A. Beechler, Winston-Salem, North Carolina, for
Appellant.   Robert Albert Jamison Lang, Assistant United States
Attorney, Winston-Salem, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

               James     Tyson      Herring    pled    guilty      to    possession         with

intent    to     distribute      crack       cocaine   and    was       sentenced      to     240

months in prison.              He now appeals.          His attorney has filed a

brief pursuant to Anders v. California, 386 U.S. 738 (1967),

stating     that       there     are    no    meritorious          issues      for     review.

Herring has filed a pro se brief raising sentencing issues.                                    We

affirm.

               In his informal brief, Herring contends that he was

improperly sentenced as a career offender because the two prior

convictions on which career offender status was based were not

charged     in     the    indictment         or    proven     to    a     jury       beyond     a

reasonable       doubt.        We    squarely      rejected     such      an   argument        in

United States v. Cheek, 415 F.3d 349 (4th Cir. 2005).                                In Cheek,

we wrote:

    [T]he Supreme Court continues to hold that the Sixth
    Amendment (as well as due process) does not demand
    that the mere fact of a prior conviction used as a
    basis for a sentencing enhancement be pleaded in an
    indictment and submitted to a jury for proof beyond a
    reasonable doubt.

Id. at 352; see also United States v. Booker, 543 U.S. 220, 244

(2005); Almendarez-Torres v. United States, 523 U.S. 224, 243-44

(1998).

               Herring also claims that the felony drug conviction

upon which the Government relied in its 21 U.S.C. § 851 (2006)


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notice    was    dismissed.        However,       he    offers   nothing        to

substantiate this claim.         Further, according to the presentence

report, Herring pled guilty in 2007 to felony possession with

intent to sell and deliver cocaine.           The matter was consolidated

for judgment with another offense, and Herring was sentenced to

a suspended sentence of eight to ten months.                 Additionally, at

his Fed. R. Crim. P. 11 hearing, Herring acknowledged having the

prior conviction in question.             We conclude that his claim is

without merit.

            We have reviewed the entire record in accordance with

Anders    and   have   not    identified    any   meritorious        issues    for

appeal.    Accordingly, we affirm. This court requires counsel to

inform his client, in writing, of his right to petition the

Supreme Court of the United States for further review.                      If the

client requests that a petition be filed, but counsel believes

that such a petition would be frivolous, counsel may move in

this court to withdraw from representation.                  Counsel’s motion

must state that a copy of the motion was served on the client.

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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