                             UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                             No. 06-4414



UNITED STATES OF AMERICA,

                                                Plaintiff - Appellee,

          versus


FRANCISCO SANCHEZ-MONTERO,

                                               Defendant - Appellant.


Appeal from the United States District Court for the Western
District of North Carolina, at Asheville.  Lacy H. Thornburg,
District Judge. (1:05-cr-00002-ALL)


Submitted:   December 15, 2006             Decided:   January 25, 2007


Before MOTZ, KING, and DUNCAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


R. Deke Falls, BARNETT & FALLS, Charlotte, North Carolina, for
Appellant.    Amy Elizabeth Ray, OFFICE OF THE UNITED STATES
ATTORNEY, Asheville, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Francisco Sanchez-Montero appeals the sentence imposed

after he pleaded guilty, pursuant to a plea agreement, to one count

of possession with intent to distribute 500 grams or more of a

mixture    and       substance    containing      a     detectable     amount    of

methamphetamine, in violation of 21 U.S.C.A. § 841(a)(1), (b)(1)(A)

(West    1999    &    Supp.   2006).     The     plea    agreement   included     a

stipulation that the base offense level was thirty-six, pursuant to

U.S. Sentencing Guidelines Manual (USSG) § 2D1.1(c)(2) (2005).                   In

determining the sentencing range, the probation officer recommended

a base offense level of thirty-six pursuant to USSG § 2D1.1(c)(2),

based on the plea agreement stipulation and the quantity of drugs

seized    from   the    vehicle   driven    by   Sanchez-Montero.        After    a

two-level reduction by application of the “safety valve” provision

at USSG § 2D1.1(b)(7) and § 5C1.2, and a three-level reduction for

acceptance of responsibility, Sanchez-Montero’s total offense level

was thirty-one.         Sanchez-Montero had no prior criminal record,

placing    him   in    criminal   history      category    I.    The    resulting

sentencing range was 108 to 135 months.                 Sanchez-Montero did not

object to the presentence report (PSR), but requested a variance

from the Guideline sentencing range.             The district court sentenced

Sanchez-Montero to 120 months of imprisonment, five years of

supervised release, and a $100 special assessment.




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

California, 386 U.S. 738 (1967), in which he states there are no

meritorious issues for appeal, but questions whether Sanchez-

Montero was convicted and sentenced for a crime that was not

charged in the indictment.        In a pro se supplemental brief,

Sanchez-Montero repeats the argument raised by counsel, and asserts

that, if he had been sentenced based on the drug type charged in

the indictment, his base offense level would have been only thirty-

two rather than thirty-six, and his sentencing range seventy to

eighty-seven months rather than 108 to 135 months.   The Government

declined to file a brief.

          Counsel and Sanchez-Montero suggest that he was charged

with one type of crime, possession with intent to distribute a

mixture containing a detectable amount of methamphetamine, but was

convicted and sentenced for a different crime, possession with

intent to distribute pure methamphetamine.    None of the arguments

raised on appeal were presented to the district court; therefore,

we review only for plain error.    United States v. Olano, 507 U.S.

725, 732 (1993) (discussing elements of plain error review).

Sanchez-Montero’s guilty plea waived any defects in the indictment

not asserted before his plea.     United States v. Willis, 992 F.2d

489, 490 (4th Cir. 1993).    In this case, the indictment validly

charged an offense and the magistrate judge conducted a thorough

inquiry pursuant to Federal Rule of Criminal Procedure 11 that


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verified    that    Sanchez-Montero’s      guilty     plea   was    knowing    and

voluntary.

            Moreover, Sanchez-Montero was convicted and sentenced

within the terms of the applicable statutory provision, which

punishes     offenses      that     involve     “50    grams       or   more   of

methamphetamine, its salts, isomers, and salts of its isomers or

500 grams or more of a mixture or substance containing a detectable

amount of methamphetamine, its salts, isomers, or salts of its

isomers.”    21 U.S.C.A. § 841(b)(1)(A)(viii) (West 1999 & Supp.

2006).   In essence, then, Sanchez-Montero’s argument reduces to a

sentencing argument — that he was sentenced based on a drug

quantity greater than that specified in the indictment.                  The PSR

attributed   a     total   of   1164   grams   of   pure   methamphetamine     to

Sanchez-Montero based on laboratory analysis of the substance

seized from his vehicle.          Sanchez-Montero has never contested the

quantity or purity of the methamphetamine found in the vehicle.

This drug quantity, and the stipulation in the plea agreement,

resulted in a base offense level of thirty-six, pursuant to USSG

§ 2D1.1(c)(2). Sanchez-Montero asserts that his base offense level

should have been thirty-two, pursuant to USSG § 2D1.1(c)(4).                   We

have previously rejected an argument similar to that asserted by

Sanchez-Montero.       United States v. Rusher, 966 F.2d 868, 879-80

(4th Cir. 1992).




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           In accordance with Anders, we have reviewed the entire

record in this case and have found no meritorious issues for

appeal.    We therefore affirm Sanchez-Montero’s conviction and

sentence. This court requires that counsel inform Sanchez-Montero,

in writing, of the right to petition the Supreme Court of the

United States for further review. If Sanchez-Montero requests that

a petition be filed, but counsel believes that such a petition

would be frivolous, then counsel may move in this court for leave

to withdraw from representation.     Counsel’s motion must state that

a copy thereof was served on Sanchez-Montero.           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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