                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 04-4273



UNITED STATES OF AMERICA,

                                             Plaintiff - Appellee,

          versus


KELBY DEVONTA BENJAMIN,

                                            Defendant - Appellant.



Appeal from the United States District      Court for the Middle
District of North Carolina, at Durham.       James A. Beaty, Jr.,
District Judge. (CR-00-200)


Submitted:   October 19, 2005         Decided:   November 14, 2005


Before WILLIAMS, MOTZ, and SHEDD, Circuit Judges.


Affirmed in part, vacated in part, and remanded by unpublished per
curiam opinion.


Robert L. McClellan, J. Marshall Shelton, IVEY, MCCLELLAN, GATTON &
TALCOTT, L.L.P., Greensboro, North Carolina, for Appellant. Anna
Mills Wagoner, United States Attorney, Sandra J. Hairston,
Assistant United States Attorney, Greensboro, North Carolina, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Kelby Devonta Benjamin pleaded guilty pursuant to a

written plea agreement to one count of conspiracy to distribute in

excess of fifty grams of crack and a quantity of cocaine powder, in

violation of 21 U.S.C. § 846 (2000).                He was sentenced to 360

months in prison.        Benjamin now appeals, contending that the

district court erred when it denied his motion to withdraw his

guilty plea and that his sentence violates the Sixth Amendment.

Although we affirm Benjamin’s conviction, we vacate his sentence

and remand for resentencing in accordance with United States v.

Booker, 125 S. Ct. 738 (2005).



                                        I

            Between 1996 and 2000, Benjamin was a cocaine and crack

dealer in Norwood, North Carolina.             At his Fed. R. Crim. P. 11

proceeding, he admitted that he was guilty of distributing cocaine

and more than fifty grams of crack.                  His presentence report

calculated that he was responsible for 2.6611 kilograms of crack

and 108.0103 kilograms of cocaine powder, for a base offense level

of 38. See U.S. Sentencing Guidelines Manual § 2D1.1(c)(1) (1998).

Two    levels   were   added    for   each    of   the   following:        firearm

possession, see USSG § 2D1.1(b)(1); being an organizer or leader of

a criminal activity involving fewer than five participants, see

USSG   §   3B1.1(c);   and     obstructing    justice,    see   USSG   §    3C1.1.


                                      - 2 -
Benjamin’s   total    offense   level    was    43,1   his   criminal   history

category was III, and his resulting guideline range was life.

            Benjamin objected to the calculation of his base offense

level, conceding responsibility for only seventeen kilograms of

cocaine powder.      He further objected to the firearm enhancement,

the role adjustment, and the denial of a reduction for acceptance

of responsibility.      He also complained about the calculation of

certain criminal history points.

            The district court heard testimony at sentencing from

Samuel Paul Bennett, who had sold crack for Benjamin, and from

Benjamin.    Benjamin testified that from the end of 1997 through

1999, he sold both crack and cocaine powder.              The amount of drugs

that he admitted selling would result in base offense level 34.

            The district court found that Benjamin was responsible

for a drug quantity exceeding 1.5 kilograms of crack, for an

offense level of 38.     The court sustained Benjamin’s objection to

the   firearm   enhancement     but   overruled     his    objections   to   the

enhancement for role in the offense and the denial of a reduction

for acceptance of responsibility.             The court enhanced Benjamin’s

offense level by two levels for obstruction of justice.                  Thus,

Benjamin’s offense level was 42.              The court also overruled the

objection to the criminal history category.               With a total offense


      1
      If the offense level is greater than 43, the guidelines
instruct that the offense level is to be treated as level 43. USSG
§ 5A, comment. (n.2).

                                      - 3 -
level of 42 and a criminal history category of III, Benjamin’s

guideline range was 360 months to life.      The court sentenced him to

360 months in prison.



                                   II

            Benjamin claims that the district court erred when it

denied his motion to withdraw his guilty plea.        In support of the

motion, Benjamin asserted that his right to effective assistance of

counsel was compromised because his attorney also represented a

codefendant.    We review the denial of a motion to withdraw a guilty

plea for abuse of discretion.      United States v. Bowman, 348 F.3d

408, 416-17 (4th Cir. 2003), cert denied, 540 U.S. 1226 (2004).

            The central factor in deciding a motion to withdraw a

plea is whether the Rule 11 proceeding was properly conducted. Id.

at 413.     Here, we note that the transcript of Benjamin’s Rule 11

proceeding reveals full compliance with the Rule.

            Additionally,   the   six   factors   identified   in   United

States v. Moore, 931 F.2d 245, 248 (4th Cir. 1991), weigh against

Benjamin.    Benjamin never has asserted that he is innocent of the

charge.   He waited over two years to attempt to withdraw his plea.

Permitting withdrawal of the plea would tax the Government and

burden the district court, both of which have spent considerable

time on this case.     Benjamin represented at his Rule 11 hearing

that he was satisfied with his attorney’s services. Finally, there


                                  - 4 -
is no credible evidence that the guilty plea was not knowing or

voluntary.       We conclude that there was no abuse of discretion in

the denial of the motion to withdraw the plea.



                                        III

            Benjamin contends that the district court violated the

Sixth Amendment under Blakely v. Washington, 542 U.S. 296 (2004),

when it assigned base level 38 based upon the judge-determined fact

of the amount of drugs for which he was accountable and increased

the   offense     level     based   upon   his    role   in    the   offense     and

obstruction of justice.        Our review is for plain error.          See United

States v. Harp, 406 F.3d 242, 247 (4th Cir. 2005).

      Using only the amount of drugs for which Benjamin admitted

responsibility, Benjamin’s offense level would be 34.                    See USSG

§ 2D1.1(c)(3).       Based on offense level 34 and criminal history

category III, Benjamin’s guideline range would have been 188-235

months’    imprisonment.        Because       Benjamin’s   360-month     sentence

exceeds    the    maximum    authorized    by    the   facts   he    admitted,   we

conclude     that   the     district   court     committed     plain    error    in

sentencing Benjamin and that the error requires resentencing.                    See

United States v. Evans, 416 F.3d 298, 300 n.4 (4th Cir. 2005);

United States v. Hughes, 401 F.3d 540, 547 (4th Cir. 2005).2


      2
      As we noted in Hughes, “We of course offer no criticism of
the district judge, who followed the law and procedure in effect at
the time” of Benjamin’s sentencing. United States v. Hughes, 401

                                       - 5 -
                               IV

          We accordingly affirm Benjamin’s conviction, vacate his

sentence, and remand for resentencing.3     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 IN PART,
                                      VACATED IN PART, AND REMANDED




F.3d at 545 n.4.
     3
      On remand, the district court should first determine the
appropriate sentencing range under the guidelines, making all
factual findings appropriate for that determination. Hughes, 401
F.3d at 546. The court should consider this sentencing range along
with the other factors identified in 18 U.S.C.A. § 3553(a) (West
2000 & Supp. 2005) and then impose a sentence. Hughes, 401 F.3d at
546. If that sentence falls outside the guideline range, the court
should explain its reasons for the departure as required by 18
U.S.C.A. § 3553(c)(2) (West 2000 & Supp. 2005). Hughes, 401 F.3d
at 546.   The sentence must be “within the statutory prescribed
range and . . . reasonable.” Id. at 547.

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