                             UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                             No. 04-4096



UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

          versus


SEAN CHRISTOPHER SHIVERS,

                                              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-03-200)


Submitted:   July 29, 2005                 Decided:   August 22, 2005


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


Affirmed by unpublished per curiam opinion.


Mark L. French, Troy N. Giatras, GIATRAS & WEBB, Charleston, West
Virginia, for Appellant.   Kasey Warner, United States Attorney,
John L. File, 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Unpublished opinions are not binding precedent in this circuit.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:

              Sean Christopher Shivers appeals the fifty-one-month

sentence he received after his guilty plea to aiding and abetting

distribution of a quantity of cocaine base (crack), 21 U.S.C. § 841

(2000).       Shivers raises two issues on appeal:            (1) whether the

district court clearly erred in denying him an adjustment for

acceptance of responsibility because he was charged with domestic

battery   while    awaiting      sentencing,     U.S.   Sentencing    Guidelines

Manual    §    3E1.1   (2003),     and    (2)    whether,   under    Blakely   v.

Washington, 542 U.S. 296 (2004), the district court’s determination

of the drug amount violated the Sixth Amendment and requires

resentencing.      For the reasons explained below, we affirm.

              Shivers and co-defendant Andre Charlton were arrested

immediately after Charlton sold crack to a confidential informant.

Law enforcement officers seized a total of 9.68 grams of crack,

which was the quantity sold to the confidential informant plus a

small amount in Charlton’s possession.             In a statement made to law

enforcement officers during his arrest, Shivers admitted that he

obtained what he believed to be a half-ounce of crack (14.175

grams) and gave it to Charlton, who sold it to the confidential

informant.      After his guilty plea, Shivers repeated this statement

to the probation officer in the presence of his lawyer.                  Shivers

did not contest the drug quantity at sentencing; he objected only

to the probation officer’s refusal to recommend a minor role


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adjustment under USSG § 3B1.2, or a reduction for acceptance of

responsibility.

            In United States v. Booker, 125 S. Ct. 738 (2005), the

Supreme Court held that Blakely applied to the federal sentencing

guidelines and that the mandatory guidelines scheme that provided

for   sentence    enhancements   based    on   facts   found   by   the   court

violated the Sixth Amendment.       Booker, 125 S. Ct. at 746-48, 755-

56.   The Court remedied the constitutional violation by severing

and excising the statutory provisions that mandate sentencing and

appellate review under the guidelines, thus making the guidelines

advisory.   Id. at 756-57.

            Subsequently, in United States v. Hughes, 401 F.3d 540,

546 (4th Cir. 2005), this court held that a sentence that was

imposed under the pre-Booker mandatory sentencing scheme and was

enhanced based on facts found by the court, not by a jury or

admitted by the defendant, constitutes plain error that affects the

defendant’s substantial rights and warrants reversal under Booker

when the record does not disclose what discretionary sentence the

district court would have imposed under an advisory guideline

scheme.   Hughes, 401 F.3d at 546-56.

            Shivers contends that, because he did not admit in open

court the drug quantity used by the district court to calculate his

offense level, the court’s adoption of the base offense level

recommended      in   the   presentence    report      violated     the   Sixth


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Amendment.1    Because Shivers neither contested the calculation of

his base offense level nor raised a Sixth Amendment challenge at

sentencing, our review is for plain error. United States v. Olano,

507 U.S. 725, 732 (1993); Hughes, 401 F.3d at 547.           Under the plain

error standard, Shivers must show: (1) there was error; (2) the

error was plain; and (3) the error affected his substantial rights.

Olano,   507   U.S.   at   732-34.     Even   when   these   conditions   are

satisfied, this court may exercise its discretion to notice the

error only if the error “seriously affects the fairness, integrity

or public reputation of judicial proceedings.” Hughes, 401 F.3d at

555 (internal quotation marks omitted).

           Because Shivers admitted the relevant quantity of crack

and did not contest the calculation of his base offense level based

on that amount, we conclude that no Sixth Amendment violation

occurred and the district court did not err in adopting the base

offense level recommended in the presentence report.              Moreover,

even if the district court’s adoption of the recommended quantity

of crack constituted judicial fact-finding that increased the

sentence and amounted to plain error, we will not exercise our

discretion to notice the error.        United States v. Cotton, 535 U.S.

625, 633 (2002) (holding that sentence exceeding maximum authorized



     1
      Shivers asserts that his base offense level should be 12,
USSG § 2D1.1(c)(14) (less than 250 mg of crack), further reduced to
10 under § 2D1.1(b)(6) (safety valve), and his guideline range
should be 6-12 months.

                                     - 4 -
by facts alleged in the indictment would not be vacated on plain

error review because evidence supporting judge-found facts on which

sentence       was   based       was   “overwhelming”    and       “essentially

uncontroverted”).2

               We review the district court’s determination that Shivers

had not accepted responsibility for clear error.             United States v.

Kise, 369 F.3d 766, 771 (4th Cir. 2004).             One of the factors the

court    may    consider    is   whether   the   defendant   has    voluntarily

terminated or withdrawn from criminal conduct.                 USSG § 3E1.1,

comment. (n.1(b)).         Shivers disputes the court’s decision to deny

him the adjustment because of unrelated criminal conduct. However,

he acknowledges that most circuits to address the issue hold that

a sentencing court does not clearly err if it chooses to deny an

adjustment for acceptance of responsibility based on commission of

criminal conduct that is different from the crime to which the

defendant pled guilty. See United States v. Prince, 204 F.3d 1021,

1023-24 (10th Cir. 2000); United States v. Ceccarani, 98 F.3d 126,

130-31 (3d Cir. 1996); United States v. Byrd, 76 F.3d 194, 197 (8th

Cir. 1996); United States v. McDonald, 22 F.3d 139, 144 (7th Cir.

1994); United States v. Pace, 17 F.3d 341, 343 (11th Cir. 1994);



     2
      Shivers does not claim that the district court erred in
failing to treat the guidelines as advisory and, in any event,
cannot satisfy the standard set out by this court in United
States v. White, 405 F.3d 208 (4th Cir. 2005), requiring an
appellant to demonstrate actual prejudice from the application of
the mandatory guideline scheme. Id. at 217-24.

                                       - 5 -
United States v. O’Neill, 936 F.2d 599, 600-01 (1st Cir. 1991);

United States v. Watkins, 911 F.2d 983, 984 (5th Cir. 1990); but

see United States v. Morrison, 983 F.2d 730, 733-35 (6th Cir. 1993)

(holding   that   new   unrelated    criminal   conduct   should    not   be

considered).   In light of these authorities, we are persuaded that

the district court did not clearly err in determining that Shivers

was not entitled to a reduction for acceptance of responsibility.

           We therefore affirm the sentence imposed by the district

court.   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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