                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 04-4960



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

          versus


RICKY LEE PRITCHETT,

                                              Defendant - Appellant.



Appeal from the United States District Court for the Western
District of Virginia, at Danville.   Jackson L. Kiser, Senior
District Judge. (CR-03-162)


Submitted:   January 27, 2006          Decided:     February 24, 2006


Before WILKINS, Chief Judge, WILLIAMS, Circuit Judge, and HAMILTON,
Senior Circuit Judge.


Affirmed by unpublished per curiam opinion.


Sharon R. Chickering, TRIAL LAWYERS, P.C., Roanoke, Virginia, for
Appellant. John L. Brownlee, United States Attorney, R. Andrew
Bassford, Assistant United States Attorney, Kevin Brotzman, Third
Year Practice Law Student, OFFICE OF THE UNITED STATES ATTORNEY,
Roanoke, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

     Ricky Lee Pritchett appeals his conviction and sentence under

21 U.S.C.A. § 841(a)(1) and (b)(1)(B) for drug distribution.

Finding no reversible error, we affirm.



                                I.

     On December 10, 2003, a Grand Jury in the Western District of

Virginia indicted Pritchett on two counts: (1) distributing five or

more grams of crack cocaine on August 7, 2003, and (2) distributing

more than fifty grams of crack cocaine on October 29, 2003.      In

April 2004, Pritchett entered into a plea agreement with the

Government by which he agreed to plead guilty to Count 2 in

exchange for the dismissal of Count 1.       In his plea agreement,

Pritchett acknowledged that the matter of sentencing would be left

to the discretion of the court, that the Sentencing Guidelines

would apply, and that life imprisonment was the maximum penalty for

the crime to which he was pleading guilty.

     At his guilty plea hearing, the Government proffered that on

October 29, 2003, Pritchett sold 54.8 grams of cocaine base to an

undercover officer of the Virginia State Police -- the facts

establishing Count 2 of the indictment.   No evidence relevant to

Count 1 was proffered.

     Pritchett’s sentencing hearing occurred on July 1, 2004.

Pritchett objected to the Presentence Report (PSR) because the PSR


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listed Pritchett as a career offender. Pritchett alleged that when

he entered into the plea agreement with the Government, he did not

know that he would be categorized as a career offender. Concluding

that the plea agreement was entered into under a mistake of

material fact, the district court allowed Pritchett to withdraw his

guilty    plea.     The   Government    then   offered    Pritchett      another

alternative:      Pritchett   could   plead    guilty   to   Count   1   of   the

indictment, and the Government would dismiss Count 2.                Pritchett

accepted this alternative plea agreement, and he pled guilty to

Count 1.    The district court stated that he was accepting the plea

based on the factual basis previously established for Count 2.

Pritchett now appeals and argues that the district court erred in

convicting him on Count 1 when only facts establishing Count 2 were

proffered to the court.       Pritchett also contends that the district

court    violated   his   Sixth   Amendment    rights    when   it   imposed   a

sentence greater than that warranted by the facts of Count 1.



                                       II.

     Because Pritchett did not seek to withdraw his guilty plea for

Count 1, we would normally review for plain error his claim that

the district court failed to formally find a factual basis for his

plea.     United States v. Martinez, 277 F.3d 517, 524 (4th Cir.

2002).     We need not consider, however, whether plain error exists

in this case because we conclude that the error, if any, was


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invited by Pritchett. United States v. Jackson, 124 F.3d 607, 616-

17 (4th Cir. 1997) (applying the invited error doctrine to an

argument that the Government failed to meet its burden of proof).

According to the invited error doctrine, “a court cannot be asked

by counsel to take a step in a case and later be convicted of

error, because it has complied with such request.”                      Id. at 617

(internal quotation marks omitted).                  Pritchett’s argument falls

squarely within the invited error doctrine.

     Despite   entering       into    a       plea    agreement   in     which   he

acknowledged that the maximum sentence was life imprisonment,

Pritchett sought to withdraw his guilty plea at his sentencing

hearing because the PSR placed him in a higher criminal history

category based on his criminal record, which would have resulted in

a term of imprisonment longer than he expected.                The court granted

Pritchett’s request to withdraw his plea and stated that Pritchett

would proceed to trial.        Before the hearing ended, however, the

Government offered Pritchett a compromise in which Pritchett could

plead guilty to Count 1 and the Government would dismiss Count 2.

The result was a Guideline sentence more similar to what Pritchett

originally expected.    Pritchett accepted the Government’s offer.

     The   district   court    then       proceeded      to   conduct   a   limited

colloquy with Pritchett.       Pritchett proceeded to plead guilty to

Count 1, and the district court stated that it was “accept[ing] the

plea based on the factual basis that [it] . . . heard at the


                                          4
previous plea to Count Two.”             (J.A. at 57.)    Pritchett now argues

that the district court erred because the factual basis for Count

2 only involved the distribution of cocaine base on October 29,

2003; no facts had been established for Count 1.

       We conclude that Pritchett invited any error when he withdrew

his guilty plea to Count 2 and then pled guilty to Count 1 to

receive a lower sentence.            Accordingly, we affirm Pritchett’s

conviction for Count 1 of the indictment.



                                         III.

       Pritchett       also    appeals     his   sentence      to   188   months’

imprisonment, contending that it violated his Sixth Amendment

rights because it was based on the facts of Count 2.                       Because

Pritchett did not object to his sentence in the district court, we

review for plain error.         United States v. Hughes, 401 F.3d 540, 547

(4th Cir. 2005).        To establish a Sixth Amendment error, Pritchett

must    show    that    his    sentence     exceeded     the   maximum    sentence

authorized by the facts he admitted.             See United States v. Booker,

125 S. Ct. 738, 756 (2005).

       No Sixth Amendment violation occurred here.                  The crime to

which Pritchett pled guilty carried a maximum statutory penalty of

40 years.      See 21 U.S.C.A. § 841(b)(1)(B) (setting forth a maximum

penalty of 40 years’ imprisonment for distributing 5 grams or more

of cocaine base).             Under the Sentencing Guidelines, a career


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offender such as Pritchett convicted of a crime with a penalty

greater than 25 years but less than life is assigned a base offense

level of 34.    U.S. Sentencing Guidelines Manual § 4B1.1 (2003).

Applying the Sentencing Guidelines, the district court assigned

Pritchett a base offense level of 34 and then subtracted 3 levels

for acceptance of responsibility, yielding a guideline range of

188-235 months’ imprisonment. The court sentenced Pritchett to 188

months’ imprisonment -- the bottom end of the guideline range.

Because Pritchett’s sentence was based solely on the facts he

admitted through his guilty plea, his Sixth Amendment rights were

not violated.



                               IV.

     For the foregoing reasons, we affirm Pritchett’s conviction

and sentence. 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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