                              UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                              No. 02-4302



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

          versus


KEVIN A. RIDEOUT, a/k/a JD,

                                              Defendant - Appellant.



     On Remand from the Supreme Court of the United States.
                      (S. Ct. No. 03-9402)


Submitted:   June 5, 2006                   Decided:   July 31, 2006


Before WILLIAMS and MICHAEL, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


Jeffrey Alan Holmstrand, MCDERMOTT & BONENBERGER, PLLC, Wheeling,
West Virginia, for Appellant. Thomas E. Johnston, United States
Attorney, Sherry L. Muncy, Assistant United States Attorney,
Clarksburg, 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Unpublished opinions are not binding precedent in this circuit.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 Kevin A. Rideout’s

conviction and sentence.       United States v. Rideout, No. 02-4302

(4th Cir. Nov. 13, 2003) (unpublished).          The Supreme Court vacated

our   decision   and    remanded   Rideout’s     case   to   us   for   further

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

(2005).

             In Rideout’s supplemental brief, filed at this court’s

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

entitled to resentencing in light of Booker because his sentence

was enhanced based on facts not found by the jury and the district

court considered the guidelines as mandatory.                Specifically, he

argues that his offense level was increased based on judicial

fact-finding     with   respect    to   the    two-level     enhancement    for

obstruction of justice and drug quantity relevant conduct findings.

             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).      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 Rideout did not

raise a Sixth Amendment challenge or object to the mandatory


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application of the guidelines in the district court, review is for

plain error.      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.      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).       While the mandatory application of the guidelines

constitutes plain error, United States v. White, 405 F.3d 208, 217

(4th Cir.), cert. denied, 126 S. Ct. 668 (2005), a defendant who

seeks resentencing on this ground must show actual prejudice, i.e.,

a “nonspeculative basis for concluding that the treatment of the

guidelines as mandatory ‘affect[ed] the district court’s selection

of the sentence imposed.’”           Id. at 223 (quoting Williams v. United

States, 503 U.S. 193, 203 (1992)).

            Removing the obstruction of justice enhancement reduces

Rideout’s offense level by two levels from 34 to 32, which,

combined    with    criminal     history       category    VI,   would     make   the

guideline range 210 to 262 months.                   Because Rideout’s 262-month

sentence    was    within     that   range,     he    cannot   show   plain   error.


                                        - 3 -
Moreover, nothing in the sentencing transcript or elsewhere in the

record provides a non-speculative basis for concluding that the

district court would have given Rideout a lower sentence if the

guidelines       were   not   mandatory.     Therefore,     Rideout    has   not

established plain error that warrants resentencing under White, 405

F.3d at 223.

      Rideout also challenges the district court’s calculation of

the drug quantity, arguing that no specific drug quantities were

contained in the indictment, in violation of his Fifth Amendment

rights, and that the district court’s factual findings were not

supported by the record.        We find that these claims are beyond the

Supreme Court’s Booker remand and are prohibited by the mandate

rule.     See United States v. Bell, 5 F.3d 64, 66 (4th Cir. 1993)

(“[f]ew legal precepts are as firmly established as the doctrine

that the mandate of a higher court is ‘controlling as to matters

within its compass’”)(quoting Sprague v. Ticonic Nat’l Bank, 307

U.S. 161, 168 (1939)). Further, as to Rideout’s first argument, in

response to his claim in his first appeal that by allowing the jury

to   calculate     drug   quantity   the   district   court    constructively

amended    the    indictment,   we   found    that   even   assuming    Rideout

satisfied the first three elements of plain error, the court would

not notice the error, under United States v. Cotton, 535 U.S. 625

(2002), because the evidence of drug quantity was “overwhelming and

essentially uncontroverted.”         United States v. Rideout, 2003 WL


                                     - 4 -
22673668,*2.    In addition, Rideout’s position is undercut by the

fact that he requested that the district court adopt the drug

quantity of 64.39 grams under which he was sentenced.*                       As to

Rideout’s argument that the district court’s factual findings as to

drug quantity were not supported by the record, as we found in the

first appeal, the evidence of drug quantity was overwhelming.

     To   the   extent   Rideout       argues    that   the   district      court’s

findings as to drug quantity violated the Sixth Amendment, we find

the sentence is not plainly erroneous.              Rideout argues that the

drug quantity should have been 48.915 grams of cocaine base,

subjecting him to a base offense level of 30 and guideline range of

168 to 210 months.     However, the jury’s special interrogatory form

specifies that the crime involved, beyond a reasonable doubt, “50

grams or more of cocaine base.”         The jury’s verdict thus results in

a base offense level of 32 under USSG § 2D1.1(c)(4), which is the

same base offense level under which Rideout was sentenced.                   Thus,

Rideout’s   sentence     did    not     exceed    the   permissible        sentence

authorized by the jury’s verdict.

            Rideout   also     moves    for     leave   to    submit   a    pro   se

supplemental brief.      We grant the motion for leave to file the pro



     *
      It has long been recognized that “a court can not be asked by
counsel to take a step in a case, and later be convicted of error
because it has complied with such [a] request.” Shields v. United
States, 273 U.S. 583, 586 (1927). “A defendant in a criminal case
cannot complain of error which he himself has invited.”         Id.
(internal quotation and citation omitted).

                                       - 5 -
se supplemental brief, but find the claims are beyond the scope of

the Supreme Court’s Booker remand and are foreclosed by the mandate

rule.    See Bell, 5 F.3d at 66.

           In sum, upon reconsideration in light of Booker, we

affirm   Rideout’s   sentence.      In     addition,   we   reinstate   our

November 13, 2003 opinion affirming his convictions.          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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