[NOT FOR PUBLICATION — NOT TO BE CITED AS PRECEDENT]


          United States Court of Appeals
                      For the First Circuit

No. 00-2573

                     UNITED STATES OF AMERICA,

                             Appellee,

                                v.

                        NATHAN WADE CONLEY,

                       Defendant, Appellant.


         APPEAL FROM THE UNITED STATES DISTRICT COURT

                     FOR THE DISTRICT OF MAINE

              [Hon. Gene Carter, U.S. District Judge]


                              Before

                Torruella and Selya, Circuit Judges,

                    and Lisi,* District Judge.


     George H. Murphy, by appointment of the court, on brief for
appellant.
     Paula D. Silsby, United States Attorney, and Margaret D.
McGaughey, Appellate Chief, on brief for appellee.




                        September 21, 2001
_______________
*Of the District of Rhode Island, sitting by designation.
          Per Curiam.        A federal grand jury, sitting in Maine,

indicted defendant-appellant Nathan Wade Conley on two drug-

trafficking counts.        Specifically, the indictment alleged that

the appellant twice had distributed cocaine in violation of 21

U.S.C. § 841(a)(1).        Both counts invoked the penalty provision

of 21 U.S.C. § 841(b)(1)(C) — a penalty provision that embodies

what we have called "the default statutory maximum" for cocaine

trafficking.    United States v. Eirby, ___ F.3d ___, ___ (1st

Cir. 2001) [No. 00-1945, slip op. at 10].               The government then

filed an information pursuant to 21 U.S.C. § 851, pointing out

that the appellant had three prior felony drug convictions — a

fact which, if true, would trigger an enhancement provision

built into 21 U.S.C. § 841(b)(1)(C) and boost his potential

maximum sentence from twenty to thirty years.

          The appellant eventually pled guilty to both counts of

the indictment, acknowledging in the plea agreement and during

the   change-of-plea       colloquy     that,     due    to      the    built-in

enhancement    for   prior    drug    felonies,   he     faced    a    potential

maximum   sentence    of     thirty    years.      The    sentencing       court

subsequently found that the appellant had committed, and had

been convicted for, the three prior drug felonies; that the

career offender guideline, USSG §4B1.1, therefore applied; that

the offenses charged in the indictment involved a total of 196.3


                                      -3-
grams of cocaine; and that the guideline sentencing range was

188-235 months (offense level 34; criminal history category VI).

The court then departed downward on the government's motion, see

USSG   §5K1.1,     and   sentenced        the   appellant    to    a    150-month

incarcerative term.        This appeal ensued.

            The appellant argues that the district court had no

right to use his prior convictions to increase the statutory

maximum because those convictions were neither charged in the

indictment nor proved to a jury beyond a reasonable doubt.                      This

argument derives from the Supreme Court's recent decision in

Apprendi v. New Jersey, 

(2000), but it misconceives

the thrust of that decision.              In holding that "any fact that

increases    the    penalty   for     a    crime    beyond   the       prescribed

statutory maximum must be submitted to a jury, and proved beyond

a reasonable doubt," the Court specifically exempted "the fact

of a prior conviction."       

         This was no accident:          by

phrasing its holding in that manner, the Apprendi Court left

intact   the     Court's    earlier       holding    in   United       States     v.

Almendarez-Torres, 

(1998).              There, the Court ruled

that the fact of a prior conviction could be treated as a

sentencing factor rather than an element of a later offense

(and, accordingly, did not need to be charged in the indictment,

submitted to the jury, or proven beyond a reasonable doubt).


                                      -4-


      Almendarez-Torres     governs    this    case    and

conclusively       refutes   the   appellant's   argument.     See   United

States v.    Patrick, 

, 28 (1st Cir. 2001);               United

States v. Terry, 

, 73-74 (1st Cir. 2001).

            We add a coda.     In this instance, the prior convictions

did, as the appellant asseverates, serve to increase the maximum

possible punishment, but the sentence actually imposed did not

exceed the unenhanced statutory maximum.          That is, the guideline

sentencing range (188-235 months), as computed by the district

court, fell wholly within the statutory maximum (240 months),

and the sentence actually imposed (150 months) was well below

that maximum.        We have held before, and today reaffirm, that

"[t]heoretical exposure to a higher maximum punishment, in and

of itself, is not enough [to work a violation of the Apprendi

principle]."       United States v. Robinson, 

, 122 (1st

Cir. 2001).    The triggering event needed to animate Apprendi is

the imposition of a sentence in excess of the default statutory

maximum — and the district court imposed no such sentence here.

            The fact that the prior convictions served to increase

the appellant's criminal history score (and, thus, the guideline

sentencing range) is of no moment.         The Apprendi principle does

not apply to guideline computations simpliciter, even when those

computations result in a higher sentence — so long as the


                                     -5-
sentence    actually   imposed   does    not   outstrip   the   default

statutory maximum.     E.g., Eirby, ___ F.3d at ___ [slip op. at

10]; United States v. Caba, 

, 101 (1st Cir. 2001).

Consequently, no cognizable Apprendi error transpired here.

            We need go no further.      The district court did not go

astray in the imposition of sentence.



Affirmed.




                                 -6-