                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 04-4129



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

          versus


TERRY LYNN KYLE, a/k/a Blackeye,

                                              Defendant - Appellant.


Appeal from the United States District Court for the Southern
District of West Virginia, at Beckley.  David A. Faber, Chief
District Judge. (CR-03-88)


Submitted:   December 7, 2005             Decided:   January 9, 2006


Before NIEMEYER, LUTTIG, and MICHAEL, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Jacqueline A. Hallinan, HALLINAN LAW OFFICES, P.L.L.C., Charleston,
West Virginia, for Appellant.        Kasey Warner, United States
Attorney, Miller A. Bushong, III, Assistant United States Attorney,
Beckley, West Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

          Terry Lynn Kyle appeals his sentence to seventy-one

months in prison, a $1500 fine, and three years of supervised

release following his guilty plea to distribution of 6.49 grams of

cocaine powder in violation of 21 U.S.C. § 841(a)(1) (2000).                  On

appeal, Kyle contends his sentence violates United States v.

Booker, 543 U.S. 220 (2005).          We affirm.

          Kyle’s sentence was imposed before the decisions of

Booker and its predecessor, Blakely v. Washington, 542 U.S. 296

(2004), and he did not raise objections to his sentence in the

district court based on the mandatory nature of the sentencing

guidelines    or    the    district   court’s    application     of   sentencing

enhancements based on facts not admitted by him or found by the

jury beyond a reasonable doubt.            Therefore, we review his sentence

for plain error.     See United States v. Hughes, 401 F.3d 540, 546-60

(4th Cir. 2005).

          At sentencing, Kyle objected to the probation officer’s

determination that he should be held accountable for distribution

of at least 3.5 kilograms of cocaine powder under U.S. Sentencing

Guidelines Manual § 2D1.1 (2003), resulting in a base offense level

of thirty.     He further objected to an enhancement for firearm

possession    and    the    denial    of   a   reduction   for   acceptance   of

responsibility.      However, Kyle acknowledged his involvement in the

distribution of up to two kilograms of cocaine powder and acceded


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to   a   base   offense   level   of    twenty-six.    The   district   court

sustained Kyle’s objections.            Accordingly, the court found his

offense level was twenty-three. With his criminal history category

of III, Kyle’s guideline range was fifty-seven to seventy-one

months.

            Because Kyle admitted the facts underlying his sentence,

we conclude there was no Sixth Amendment error.              See Booker, 543

U.S. at ___, 125 S. Ct. at 756 (“Any fact (other than a prior

conviction) which is necessary to support a sentence exceeding the

maximum authorized by the facts established by a plea of guilty or

a jury verdict must be admitted by the defendant or proved to a

jury beyond a reasonable doubt.”).             Although the district court

erred by treating the guidelines as mandatory, Kyle has not shown

his substantial rights were affected by the error.             Kyle received

a sentence at the high end of his guideline range, and the record

provides no nonspeculative basis for concluding he would have

received a lesser sentence if the guidelines were advisory.              See

United States v. White, 405 F.3d 208, 223-24 (4th Cir. 2005), cert.

denied, 2005 WL 3027841 (U.S. Nov. 14, 2005) (No. 05-6981).

            Accordingly, we 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 aid the

decisional process.

                                                                    AFFIRMED


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