                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 05-4528



UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

          versus


JAMES WILLIAM BYNUM, a/k/a Woo Bynum, a/k/a
Budda Bynum, a/k/a Big E,

                                              Defendant - Appellant.



Appeal from the United States District Court for the District of
South Carolina, at Florence. R. Bryan Harwell, District Judge.
(CR-04-823)


Submitted:   January 20, 2006             Decided:   February 9, 2006


Before WILLIAMS, MICHAEL, and TRAXLER, Circuit Judges.


Affirmed by unpublished per curiam opinion.


D. Craig Brown, Florence, South Carolina, for Appellant. Alfred
William Walker Bethea, Jr., Assistant United States Attorney,
Florence, South Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            James     William     Bynum     pled       guilty     to    one    count    of

conspiracy to possess with intent to distribute and distribution of

fifty grams or more of cocaine base, in violation of 21 U.S.C.

§§ 841(a)(1), (b)(1)(A); 846 (2000).                     Bynum was sentenced to

imprisonment    for       235   months.      We       affirm    the    conviction      and

sentence.

            Because       the    district        court    determined          Bynum    was

responsible for 7,753 grams of cocaine base, Bynum was assigned a

base offense level of thirty-eight. See U.S. Sentencing Guidelines

Manual § 2D1.1(c)(1) (2004).               Additionally, the district court

enhanced Bynum’s offense level by two because his co-conspirator

possessed   a   firearm.          See     USSG    §    2D1.1(b)(1).           After    the

application     of    a    three-level       adjustment          for    acceptance     of

responsibility,      Bynum’s     total     offense       level    was    thirty-seven.

Bynum was assessed seven criminal history points.                             This total

included two points because the offense was committed while Bynum

was on probation, see USSG § 4A1.1(d), and one point because the

offense was committed less than two years after Bynum’s release

from a qualifying term of imprisonment, see USSG § 4A1.1(e).

Bynum’s resulting criminal history category of IV placed him within

an advisory guideline range of 292 to 365 months.

            Bynum’s counsel made numerous written objections to the

Presentence Investigation Report, including objections to (1) the


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minimum term of imprisonment being twenty years and (2) the drug

weight attributed to Bynum.         Though counsel acknowledged that the

Government filed a notice of enhancement pursuant to 21 U.S.C.

§ 851 (2000), he argued that the statutory minimum was ten years as

that was the district court’s advisement during Bynum’s Rule 11

hearing.     The Probation Officer acknowledged that the district

court did not advise Bynum of the enhanced statutory minimum under

§ 851 and, consequently, revised the presentence report to comport

with the district court’s advisement.                 At sentencing, Bynum’s

counsel    agreed   to   withdraw    his      objection   to   the    drug   weight

attributed    to    Bynum    so   long   as    the   Government      conceded   the

two-point firearm enhancement.           As a result, Bynum’s total offense

level became thirty-five and, with a criminal history category of

IV, his advisory guideline range was 235 to 293 months.                         The

district court adopted the presentence report, as revised, and

sentenced Bynum to imprisonment for 235 months.

            On appeal, counsel filed a brief pursuant to Anders v.

California, 386 U.S. 738 (1967), raising the issue of whether the

district court erred in its Rule 11 colloquy when it misstated the

mandatory minimum sentence.         Though counsel contends the district

court erred, he concedes that such error did not affect Bynum’s

substantial rights.         Bynum was notified of his right to file a pro

se supplemental brief, but did not do so, and the Government

elected not to file an answering brief.


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            Because Bynum did not seek to withdraw his guilty plea in

the district court, his alleged Rule 11 error is reviewed by this

Court for plain error.          United States v. Martinez, 277 F.3d 517,

524-26 (4th Cir. 2002).           We “may notice an error that was not

preserved . . . only if the defendant can demonstrate (1) that an

error occurred, (2) that it was plain error, and (3) that the error

was material or affected the defendant’s substantial rights.”                     Id.

at   524.    It   is    clear    that   the     district    court   erred   in    its

recitation of the statutory minimum and that such error was plain.

However, the presentence report was revised to comport with the

district court’s Rule 11 advisement.                Furthermore, the district

court’s sentence was both at the low end of the guideline range and

below the proposed § 851 enhanced statutory minimum. Therefore, we

conclude Bynum’s substantial rights were not affected.

            In accordance with Anders, we have reviewed the entire

record in this case and have found no meritorious issues for

appeal.     Accordingly we affirm Bynum’s conviction and sentence.

This court requires that counsel 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, then

counsel     may   move    this    court       for   leave    to     withdraw     from

representation.        Counsel’s motion must state that a copy thereof

was served on the client.         We dispense with oral argument because


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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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