                             UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                             No. 04-4511



UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

          versus


BRAD LAKENRICK CHAMBERS,

                                              Defendant - Appellant.


Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. Frank W. Bullock, Jr.,
District Judge. (CR-04-17)


Submitted:   June 22, 2005                 Decided:   August 12, 2005


Before TRAXLER, GREGORY, and DUNCAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Louis C. Allen, III, Federal Public Defender, William C. Ingram,
Assistant Federal Public Defender, Greensboro, North Carolina, for
Appellant. Anna Mills Wagoner, United States Attorney, Lisa B.
Boggs, Assistant United States Attorney, Greensboro, North
Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

          Brad Lakenrick Chambers pled guilty to the first two

counts of a four-count indictment. Count One alleged that Chambers

and others conspired and possessed with the intent to distribute in

excess of 500 grams of a mixture and substance containing a

detectable amount of cocaine hydrochloride in violation of 21

U.S.C. § 841(a)(1) and (b)(1)(B) (2000) and in violation of 21

U.S.C. § 846 (2000).     Count Two alleged that on or about October

10, 2003, Chambers, during and in relation to a drug trafficking

crime (drug conspiracy), did knowingly carry a firearm in violation

of 18 U.S.C. § 924(c)(1)(A)(i) and (2) (2000).

          Subsequent to his guilty plea, the Government filed a

motion pursuant to 18 U.S.C. § 3553(e) and the U.S. Sentencing

Guidelines Manual (“USSG”) § 5K1.1 (2003) requesting that Chambers

receive a twenty-five percent reduction in his sentence based on

his substantial assistance to Government agents.     Following the

preparation of a presentence report by the probation officer, the

district court held a sentencing hearing on June 14, 2004.      The

presentence report held Chambers responsible for three kilograms of

cocaine hydrochloride.    The presentence report recommended a base

level offense of twenty-eight, that the total offense level after

a reduction for acceptance of responsibility be twenty-five, and a

criminal history category of II, based on a total of two criminal

history points.


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          At sentencing, the court noted that the guideline range

for Chambers would ordinarily be a minimum of 123 months, but in

light of his cooperation, the court sentenced him to ninety months.

The court sentenced Chambers to thirty months’ imprisonment for

Count One and sixty months’ imprisonment for Count Two, to run

consecutively to the sentence imposed on Count One.        Chambers

timely filed a notice of appeal.

          Citing Blakely v. Washington, 124 S. Ct. 2531 (2004),

Chambers asserts that his sentence is unconstitutional.*    Because

Chambers did not object to his sentence in the district court based

on Blakely or United States v. Booker, 125 S. Ct. 738 (2005), this

court’s review is for plain error.    United States v. Hughes, 401

F.3d 540, 547 (4th Cir. 2005).        To demonstrate plain error,

Chambers must establish that error occurred, that it was plain, and

that it affected his substantial rights.      Id. at 547-48.   If a

defendant establishes 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.”    Id. at 555 (internal

quotation marks and citation omitted).

          Against this background, Chambers appeals his base level

offense of twenty-eight because the indictment alleged only 500


     *
      Chambers does not challenge his conviction on appeal.

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grams of cocaine hydrochloride.                   There is no Sixth Amendment

violation, however, when a district court relies on facts to which

the defendant agrees.        See Blakely, 124 S. Ct. at 2537, quoted in

Booker, 125 S. Ct. at 749 ("the 'statutory maximum' for Apprendi

purposes is the maximum sentence a judge may impose solely on the

basis of the facts reflected in the jury verdict or admitted by the

defendant.")     (emphasis     in    original).        At   the   change   of    plea

hearing, Chambers agreed to the Government’s factual summary, which

included statements that Chambers and his co-conspirator (1) had

enough money for three kilos and (2) wanted to purchase five kilos

a week. At sentencing, counsel for Chambers stated that his client

had   no     factual    objections    to     the    presentence    report,      which

referenced the three kilogram amount. Thus, the first prong of the

plain-error test is not satisfied, because Chamber’s sentence was

not enhanced as a result of judicial findings that went beyond the

facts admitted by Chambers.

              Chambers also challenges his criminal history category

under Blakely, asserting that the factual findings necessary to

apply   the    guidelines’     criminal      history    provisions      make    those

provisions very different from the simple finding of the fact of a

conviction.      In Apprendi v. New Jersey, 530 U.S. 466 (2000), the

Supreme Court held “[o]ther than the fact of a prior conviction,

any   fact    that     increases    the    penalty    for   a   crime   beyond    the

prescribed statutory maximum must be submitted to a jury, and


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proved beyond a reasonable doubt.”     Id. at 490.   In Booker, the

Supreme Court reaffirmed its holding in Apprendi.    See Booker, 125

S. Ct. at 756 (Stevens, J., opinion of the Court).     The district

court’s assessment of criminal history points in this case was

based on the summary of the convictions in the presentence report,

to which Chambers did not object.

           Accordingly, we affirm the judgment of 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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