                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 03-4638



UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

          versus


DONELL DONTE PADGETT,

                                              Defendant - Appellant.



     On Remand from the Supreme Court of the United States.
                      (S. Ct. No. 04-6041)


Submitted:   October 11, 2006             Decided:   November 8, 2006


Before WIDENER, MICHAEL, and DUNCAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Donald L. Stennett, BREWSTER, MORHOUS,      CAMERON, CARUTH, MOORE,
KERSEY & STAFFORD, PLLC, Charleston, West   Virginia, for Appellant.
Kasey Warner, United States Attorney, R.    Gregory McVey, Assistant
United States Attorney, Huntington, West    Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

             This case is before the court on remand from the United

States     Supreme   Court.   We   previously    affirmed   Donell   Donte

Padgett’s conviction and sentence.         United States v. Padgett, No.

03-4638 (4th Cir. May 26, 2004) (unpublished).        The Supreme Court

vacated our judgment and remanded the case to us for further

consideration in light of United States v. Booker, 543 U.S. 220

(2005).1     After reviewing Padgett’s sentence as instructed, we

affirm.

             A jury convicted Padgett of conspiracy to possess with

intent to distribute more than five grams of crack cocaine, two

counts of distribution of an unspecified quantity of crack cocaine,

and aiding and abetting the distribution of an unspecified quantity

of crack cocaine.      At sentencing, the district court held Padgett

responsible for the marijuana equivalencies of $2400 in cash found

on Padgett’s person at the time of his arrest and 33.89 grams of

crack, representing the amount of crack involved in controlled buys

and seized from Padgett’s home.      The court assigned a base offense

level of 28, see U.S. Sentencing Guidelines Manual § 2D1.1, and

increased this by two levels for possession of firearms, see USSG

§ 2D1.1(b), for a total offense level of 30.         Padgett’s criminal




     1
      By implication, the Supreme Court’s order leaves intact that
part of our decision affirming the conviction.

                                   - 2 -
history category was II, and his resulting guideline range was 108-

135 months.      He was sentenced to 108 months in prison.

           In Padgett’s supplemental brief, filed at our direction

after the Supreme Court’s remand, Padgett contends that he is

entitled to resentencing in light of Booker because his sentence

was enhanced based on facts not found by the jury.              Specifically,

he   complains    that   his   base    offense    level   and    the   firearm

enhancement were determined based on facts found by the district

court instead of by the jury.

           This court has identified two types of Booker error:              a

violation of the Sixth Amendment and a failure to treat the

sentencing guidelines as advisory.            United States v. Hughes, 401

F.3d 540, 552 (4th Cir. 2005).2           A Sixth Amendment error occurs

when the district court imposes a sentence greater than the maximum

permitted based on facts found by a jury or admitted by the

defendant.    Booker, 543 U.S. at 244-45.          Because Padgett did not

raise a Sixth Amendment challenge in the district court, our review

is for plain error.      See Hughes, 401 F.3d at 547.           To demonstrate

plain error, an appellant must establish that an error occurred,

that it was plain, and that it affected his substantial rights.


      2
      Padgett does not complain on appeal about the district
court’s treatment of the guidelines as mandatory.       Had he so
complained, we would have found no merit to this claim because
Padgett failed to present any non-speculative evidence that he
would have received a lower sentence had the guidelines been
treated as advisory. See United States v. White, 405 F.3d 208, 215
(4th Cir. 2005).

                                      - 3 -
See United States v. Olano, 507 U.S. 725, 731-32 (1993); Hughes,

401 F.3d at 547-48.        If an appellant meets these requirements, the

court’s “discretion is appropriately exercised only when failure to

do so would result in a miscarriage of justice, such as when the

defendant is actually innocent or the error seriously affects the

fairness, integrity, or public reputation of judicial proceedings.”

Hughes, 401 F.3d at 555 (internal quotation marks and citation

omitted).

             Other than the conviction on Count One, which charged

Padgett with possession with intent to distribute more than five

grams of cocaine base, the jury made no findings as to the weight

of   drugs   for   which    Padgett    was    responsible.     Based    on   the

conviction on Count One alone, Padgett’s offense level would have

been 26, and his guideline range would have been 70-87 months.               His

guideline range calculated based on judge-found facts (weight of

drugs and possession of firearms) was 108-135 months.             Padgett was

sentenced to 108 months in prison, well above the maximum of the

range established based on jury findings.             Therefore, the district

court’s findings as to weight of drugs and possession of firearms

constitute plain Sixth Amendment error under Hughes. We decline to

recognize the error, however, because, as demonstrated in our

earlier   opinion,    evidence    of    both   drug    quantity   and   firearm

possession was “overwhelming and uncontroverted.”                  See United

States v. Cotton, 535 U.S. 625, 633 (2002); United States v. Smith,


                                      - 4 -
441 F.3d 254, 272 (4th Cir. 2006) (“Even though the Sixth Amendment

required that the jury, rather than the trial judge, make the drug

quantity findings that increased [the defendant’s] sentence, the

evidence     concerning   drug   quantity   was   overwhelming   and

uncontroverted.”).    We adhere to our earlier conclusion that guns

and drugs discovered at a residence were appropriately treated as

relevant conduct because of Padgett’s significant ties to that

residence.

           We accordingly affirm.    We dispense with oral argument

because the facts and legal contentions are adequately presented in

the materials before the court and argument would not significantly

aid the decisional process.



                                                           AFFIRMED




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