                             UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                             No. 04-4182



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

           versus


TERRANCE L. SMALLS, a/k/a T,

                                             Defendant - Appellant.



Appeal from the United States District Court for the District of
South Carolina, at Beaufort.    Sol Blatt, Jr., Senior District
Judge. (CR-98-322)


Argued:   March 18, 2005                    Decided:   June 14, 2005


Before NIEMEYER, LUTTIG, and KING, Circuit Judges.


Vacated and remanded by unpublished per curiam opinion.


ARGUED: Andrew J. Savage, III, SAVAGE & SAVAGE, Charleston, South
Carolina, for Appellant. Robert Hayden Bickerton, Assistant United
States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charleston,
South Carolina, for Appellee. ON BRIEF: J. Strom Thurmond, Jr.,
United States Attorney, Columbia, South Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            In 1999, appellant Terrance L. Smalls pleaded guilty in

the District of South Carolina to separate felony offenses of drug

possession    and     conspiracy.           Despite     Smalls’s    plea   agreement

obligation to be “fully truthful and forthright” concerning the

Government’s investigation into illegal drug trafficking and other

unlawful activities, Smalls failed to inform the authorities of a

1994 drug-related murder in which he had participated.                     The court

sentenced Smalls to forty years of imprisonment after applying the

murder cross-reference provided for in § 2D1.1(d)(1) of the United

States Sentencing Guidelines. On appeal, Smalls urges, inter alia,

that   we   vacate        his    sentence    because     the    court    erroneously

considered     his        post-plea   admissions        about      the   murder,   in

contravention of the Fifth and Sixth Amendments, and otherwise

based his sentence on judge-found facts, in violation of the Sixth

Amendment.     As explained below, we reject Smalls’s contention on

the sentencing court’s consideration of his post-plea admissions.

In light of United States v. Booker, 125 S. Ct. 738 (2005), and its

progeny, however, we vacate his sentence and remand.



                                            I.

             Smalls was involved in a drug-trafficking organization

that   operated      in    the    Burton    area   of    Beaufort    County,   South

Carolina, and whose members were known as the “Burton Boys.”                       In


                                            2
January 1998, a task force of local, State, and Federal law

enforcement officers began an investigation into the Burton Boys,

which revealed that Smalls had sold cocaine base (“crack”) and

cocaine that he received from various sources.               On December 9,

1998, after completion of the investigation, a thirty-three count

indictment was returned against twenty-eight defendants, including

Smalls,   for    various     drug-trafficking    activities.       Smalls    was

charged in three of those counts with: (1) conspiring to possess

with    intent    to    distribute     cocaine    and    cocaine     base,    in

contravention of 21 U.S.C. §§ 846 and 841(a)(1) (“Count 1”); (2)

possessing with intent to distribute cocaine base, in violation of

21 U.S.C. § 841(a)(1) (“Count 2”); and (3) possessing with intent

to distribute cocaine, in contravention of 21 U.S.C. § 841(a)(1).

           On March 16, 1999, Smalls and his lawyer entered into a

“proffer” understanding with the Government, by which Smalls, inter

alia,   agreed   to    “be   fully   truthful    and   forthright”   with    the

authorities, to assist in negotiations with the prosecution on a

potential plea agreement.            Later that month, pursuant to the

proffer, Agents March and Purcell of the FBI twice interviewed

Smalls — with the consent of his then-counsel, Joenathan Chaplin.

The agents sought to confirm their suspicion that Smalls possessed

information concerning (and had possibly participated in) the July

1994 drug-related murder of Audrey Stoeckle. During each interview

Smalls requested to speak with his counsel, Mr. Chaplin, and each


                                       3
time his request was granted.    In the second interview, on March

24, 1999, Smalls admitted being present at the Stoeckle murder and

asserted that his co-defendant Benjamin Gibbs had killed Stoeckle.

Two months later, on May 20, 1999, a formal plea agreement was

entered into and Smalls pleaded guilty to Counts 1 and 2 of the

indictment — the offenses of conspiracy and possession with intent

to distribute crack cocaine. As part of the plea agreement, Smalls

admitted being “personally responsible for . . . at least 500 grams

but less than 1.5 kilograms” of crack.1    On December 15, 1999, in

compliance with the plea agreement, Smalls submitted to a polygraph

examination.   Before the polygraph was administered, Smalls was

advised of and waived his Miranda rights.      During the examination

itself, Smalls denied shooting Stoeckle.    When Smalls was informed

that he had failed the polygraph examination, he requested that the

post-examination   interview    cease,   and    it   was   immediately

terminated.

          Because Smalls had failed the polygraph examination, the

Government was unable to use him as a witness against Gibbs, who

was being prosecuted for the murder of Stoeckle.     His inability to

testify in turn prejudiced his eligibility for a downward departure



     1
        The plea agreement between the Government and Smalls also
provided that, if Smalls failed to be “fully truthful and
forthright at any stage,” the attorneys for the Government could —
at their sole election — “cause the obligations of the
[Government] to become null and void.”

                                  4
for   cooperation    with    the   Government,       under   §   5K1.1   of   the

Sentencing Guidelines.       In an attempt to get Smalls “back in the

ball game,” his lawyer, Mr. Chaplin, thereafter gave permission for

FBI agents to re-interview Smalls.            As a result, on January 26,

2000, Agents March and Purcell interviewed Smalls at the Dorchester

County Jail in St. George, South Carolina June 1, 2005(the “Final

Interview”). On that occasion, the agents informed Smalls that his

polygraph examination had indicated deceptiveness, and they asked

him to further explain what had happened the night of the Stoeckle

shooting.    Smalls then admitted that he had aimed a 9-millimeter

pistol towards a ditch in which Stoeckle lay screaming, that he had

fired three or four shots in her direction, and that she had made

a “dying sound.”      Smalls     never requested either the presence of

his lawyer or that the interview be terminated.

            The   district     court    thereafter    conducted    a   three-day

sentencing hearing concerning Smalls, from February 11 through

February 13, 2004.2    At that hearing, Smalls contended that the FBI

agents did not have permission from his attorney, Chaplin, to

conduct the Final Interview, and therefore that any admissions he

had made in the Interview were obtained in violation of his Sixth

Amendment right to counsel.            Chaplin testified in the sentencing


      2
         On August 31, 1999, the probation officer completed
Smalls’s Presentence Investigation Report (“PSR”), which was
subsequently revised and supplemented four times, incorporating
objections by both the Government and Smalls. The final addendum
to the PSR was filed on February 5, 2004.

                                         5
hearing on that issue, and asserted that he could not remember

whether he had agreed that the agents could re-interview Smalls.

The district court, in ruling on the factual dispute, found that

Chaplin had given permission for his client to be re-interviewed by

the agents, observing that the only way Chaplin could have gotten

Smalls “back in the ball game,” i.e., to testify for the Government

and thereby become eligible for a downward departure, was to

authorize the FBI agents to re-interview him.

            In   determining     Smalls’s   sentencing   range,   the   court

grouped the drug conspiracy and drug possession counts together.

See USSG § 3D1.2(d) (2003). First, it found that, disregarding the

plea agreement, Smalls had dealt at least 1.5 kilograms of crack,

which resulted in a base offense level of 38.            See id. § 2D1.1.

Second, the court enhanced Smalls’s offense level by two levels for

possession of a dangerous weapon, increasing his offense level to

40.     See id. § 2D1.1(b)(1).      The court based this enhancement on

the evidence related to the Stoeckle murder, as Smalls had not

pleaded guilty to any facts related to possession of a firearm.

Finally, the court found that Smalls was responsible for the murder

of    Stoeckle   and   applied   the   murder   cross-reference.        See   §

2D1.1(d)(1) (“If a victim was killed under circumstances that would

constitute murder under 18 U.S.C. § 1111 had such killing taken

place within the territorial or maritime jurisdiction of the United

States, apply § 2A1.1 (First Degree Murder).”).            In making its §


                                       6
2D1.1(d)(1) ruling, the court concluded, “I’m convinced beyond a

reasonable doubt that you participated in this murder and you shot

this girl.”

             As   a   result   of    the       court’s    application   of   the   §

2D1.1(d)(1) murder cross-reference, Smalls’s base offense level was

43 — notwithstanding the court’s earlier calculations.                       After

determining that his criminal history category was II, Smalls’s

guideline sentence was life in prison.                    However, the statutory

maximum for each of the offenses to which Smalls had pleaded guilty

was twenty years, under 21 U.S.C. § 841(b)(1)(C), thus limiting his

maximum sentence to forty years.               See Apprendi v. New Jersey, 530

U.S. 466, 490 (2000) (“Other 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

proved beyond a reasonable doubt.”).3                    As a result, the court

sentenced Smalls to two consecutive terms of 240 months (twenty




      3
        In his plea agreement Smalls had stipulated to a quantity
of drugs which could have made him eligible for a life sentence
under § 841(b)(1)(B)(ii)(II) of Title 21. Counts 1 and 2 of the
indictment, however, alleged no drug quantities. Compare 21 U.S.C.
§   841(b)(1)(B)(ii)(II)   (authorizing   life  imprisonment   for
possession of 500 grams of cocaine mixture) with 21 U.S.C. §
841(b)(1)(C) (authorizing twenty-year maximum sentence for
possession of cocaine mixture). Because the Government does not
contest the court’s conclusion that Smalls’s maximum term of
imprisonment was capped at forty years, we need not address the
question of whether the drug quantities stipulated to in the plea
agreement made Smalls eligible for a life sentence.

                                           7
years) on each of the counts to “carry out . . . the Guideline

Range as near as possible, or the Guideline Range of life.”

           Smalls has filed a timely notice of appeal, and we

possess jurisdiction pursuant to 28 U.S.C. § 1291.4



                                       II.

           In reviewing a district court’s sentencing determinations

under the Guidelines, we review findings of fact for clear error

and the court’s application of the Guidelines de novo.                  See United

States v. Savage, 390 F.3d 823, 832 (4th Cir. 2004).                  When a timely

and   sufficient    objection    to    the    erroneous         application    of   a

sentencing provision has not been made, we are only empowered to

correct the sentencing error if it constitutes “plain error” under

Federal Rule of Criminal Procedure 52(b).                  See Fed. R. Crim. P.

52(b) (“A plain error that affects substantial rights may be

considered   even    though     it    was    not    brought      to   the    court’s

attention.”); United States v. Hughes, 401 F.3d 540, 547 (4th Cir.

2005).    With     these   principles        in    mind,   we    assess     Smalls’s

contentions on appeal.




      4
        On January 24, 2005, Smalls filed in this Court a motion to
remand for resentencing pursuant to United States v. Booker, 125 S.
Ct. 738 (2005). On February 14, 2005, Smalls filed a supplemental
brief with our permission, contending that his sentence violated
the Sixth Amendment under Booker.

                                        8
                                      III.

           First of all, Smalls maintains that the sentencing court

erred in considering the admissions that he made to the FBI agents

in the Final Interview — that he pointed a pistol in the direction

of Stoeckle and that, after he fired three or four shots in her

direction, she made a “dying sound” — because those admissions

were   obtained    from   him   in   violation    of    the   Fifth   and    Sixth

Amendments.     Second, Smalls contends that his sentence contravened

his Sixth Amendment right to a jury trial because it was based on

judge-found facts, in violation of Booker.

                                       A.

                                       1.

           In     challenging    the    court’s        consideration    of    the

admissions made by him in the Final Interview, Smalls makes a two-

pronged constitutional assertion.            First, he maintains that the

statements were obtained in contravention of his Fifth Amendment

privilege against self-incrimination.            See U.S. Const. amend. V

(“No person shall be . . . compelled in any criminal case to be a

witness against himself . . . .”); Missouri v. Seibert, 124 S. Ct.

2601, 2608 (2004) (reaffirming that “the accused must be adequately

and effectively apprised of his rights and the exercise of those

rights must be fully honored.”) (internal quotation marks omitted).

Specifically, Smalls contends that after he asserted his desire to

                                       9
terminate the post-polygraph interview, the Government was mandated

(but failed) to advise him of his Miranda rights at the outset of

the Final Interview.      See Michigan v. Mosely, 423 U.S. 96, 104

(1975) (holding that “the admissibility of statements obtained

after the person in custody has decided to remain silent depends

under Miranda on whether his right to cut off questioning was

scrupulously honored”) (internal quotation marks omitted).

             Unfortunately for Smalls, he waived his privilege against

self-incrimination by entering into the plea agreement with the

Government, in which he specifically agreed to “be fully truthful

and forthright.”      As we observed in United States v. Scruggs, a

number of courts have concluded that “‘a plea agreement that states

in general terms the defendant’s obligation to cooperate with the

government    can   constitute   a   waiver   of   the   defendant’s   Fifth

Amendment privilege against self-incrimination.’”            356 F.3d 539,

546 (4th Cir. 2004) (finding defendant waived Fifth Amendment

privileges by entering plea agreement) (quoting United States v.

Bad Wound, 203 F.3d 1072, 1075 (8th Cir. 2000)).           Smalls seeks to

distinguish the Scruggs decision, however, on the basis that

Scruggs had explicitly waived all “claim[s] under the United States

Constitution,” whereas Smalls agreed only to cooperate and be

truthful, without explicitly waiving his constitutional rights.

          Smalls’s contention on this point is unavailing, however,

because he is asserting a distinction in the two cases that is


                                     10
immaterial. In examining this point, we are bound by our precedent

in United States v. Wise, that a defendant has “waived his fifth

amendment privilege by entering into the plea agreement requiring

him to cooperate with the government.”            603 F.2d 1101, 1104 (4th

Cir. 1979); see also United States v. Resto, 74 F.3d 22, 27 (2d

Cir. 1996) (observing that defendant “entered into the agreement

voluntarily, electing to give up his [Fifth Amendment] privilege

(to   a   limited   extent)   in   exchange   for      the   benefits   of    the

agreement”); United States v. Lawrence, 918 F.2d 68, 72 (8th Cir.

1990) (“Any Fifth Amendment right not to reveal the full extent of

his criminal activity was waived when [the defendant] entered the

plea agreement, as well as each time thereafter when he volunteered

different information.”). By entering into his plea agreement with

the   Government    and    thereby     agreeing   be    fully   truthful      and

forthright, Smalls necessarily waived his Fifth Amendment privilege

against self-incrimination regarding the Stoeckle murder.                    As a

result, the sentencing court was entitled to take into account

Smalls’s    post-plea     admissions    concerning     the   Stoeckle   murder

without contravening the Fifth Amendment.

                                       2.

            Second, Smalls maintains that his post-plea admissions

were obtained in violation of his Sixth Amendment right to counsel.

The Sixth Amendment provides that “[i]n all criminal prosecutions,

the accused shall enjoy the right . . . to the have the Assistance


                                       11
of Counsel for his defence.”    U.S. Const. amend. VI.   The right to

counsel attaches after “adversary judicial proceedings” have been

initiated against the defendant “‘whether by way of formal charge,

preliminary hearing, indictment, information, or arraignment.’”

United States v. Gouveia, 467 U.S. 180, 187-88 (1984) (quoting

Kirby v. Illinois, 406 U.S. 682, 689 (1972)). Thus, Smalls’s Sixth

Amendment right to counsel had attached when he made the statements

at issue.5

             A defendant whose Sixth Amendment right to counsel has

attached is entitled to waive that right in connection with a

police-initiated interrogation.     Patterson v. Illinois, 487 U.S.

285, 292-93 (1988); see also Michigan v. Harvey, 494 U.S. 344, 352

(1990) (“[N]othing in the Sixth Amendment prevents a suspect

charged with a crime and represented by counsel from voluntarily

choosing, on his own, to speak with police in the absence of an

attorney.”). And, “in at least some cases[,] waiver can be clearly



     5
       The Sixth Amendment — unlike the Fifth Amendment — is
offense-specific, in that its invocation as to a pending offense
would not preclude police from interrogating a suspect about an
unrelated offense. See Texas v. Cobb, 532 U.S. 162, 173-74 (2001)
(holding that Sixth Amendment right to counsel encompasses only
offenses that “would be considered same offense under the
Blockburger test”) (citing Blockburger v. United States, 284 U.S.
299, 304 (1932) (“where the same act or transaction constitutes a
violation of two distinct statutory provisions, the test to be
applied to determine whether there are two offenses or only one, is
whether each provision requires proof of a fact which the other
does not”)).   In this appeal, however, the Government makes no
contention that the Stoeckle murder was a separate offense, under
Blockburger, from the drug offenses with which Smalls was charged.

                                  12
inferred from the actions and words of the person interrogated.”

North Carolina v. Butler, 441 U.S. 369, 373 (1979). In assessing

whether there has been a knowing, intelligent, and voluntary waiver

of   the   right    to    counsel,      a    court       is    obliged    to    weigh    “the

particular     facts      and     circumstances           surrounding          th[e]     case,

including the background, experience, and conduct of the accused.”

Johnson v. Zerbst, 304 U.S. 458, 464 (1938), overruled in part on

other grounds by Edwards v. Arizona, 451 U.S. 477 (1981).

            The particular facts and circumstances surrounding this

case undermine Smalls’s contention with respect to his right to

counsel issue at the Final Interview.                          First of all, Smalls,

assisted by his counsel, had entered into a plea agreement with the

prosecutor,    by     which      he    agreed       to    “be     fully       truthful    and

forthright”        with    the     Government            regarding        his       “unlawful

activities.”        Second,      less       than   six        weeks    before    the     Final

Interview, Smalls’s Miranda rights had been fully explained to him

and he had waived them.                Indeed, the record shows that those

constitutional       rights      had   been       explained       to    him    on    multiple

occasions.     When the Final Interview was conducted, Smalls was a

twenty-six year old adult possessing an eleventh grade education,

and he had personal experience in the state criminal justice system

as a result of various criminal proceedings instituted against him.

Third, during the Government’s two March 1999 interviews of Smalls,

he had asserted a desire to speak with his counsel, and he had


                                             13
requested    that   his   post-polygraph    interview    be     terminated,

demonstrating his knowledge of his right to have his counsel

present.    Fourth, his own lawyer had initiated the Final Interview

by speaking directly with the prosecutor, in an effort to get

Smalls “back in the ball game,” i.e., testifying for the Government

and   thereby   potentially   eligible     for   a   downward   departure.

Finally, Smalls never expressed any desire to have his counsel

present at the Final Interview.         In these circumstances, we are

constrained to conclude that Smalls never asserted his right to

counsel with respect to that Interview.          See Butler, 441 U.S. at

373 (holding implied waiver of Sixth Amendment rights permissible).

As a result, we also reject Smalls’s contention that the statements

he made in the Final Interview were obtained in contravention of

his right to counsel.

                                   B.

            We next assess Smalls’s contention that his sentence was

imposed in violation of the Sixth Amendment’s jury trial guarantee,

in light of Booker and its progeny.         Because Smalls raised this

Sixth Amendment challenge for the first time on appeal, we review

his contention for plain error only, applying the principles of

United States v. Olano, 507 U.S. 725, 732 (1993).               See United

States v. Hughes, 401 F.3d 540, 547 (4th Cir. 2005).             The plain

error mandate of Olano is satisfied if: (1) there was error; (2) it

was plain; and (3) it affected the defendant’s substantial rights.


                                   14
507 U.S. at 732.      If these conditions are met, we may then exercise

our discretion to notice the error, but only if it “seriously

affects the fairness, integrity or public reputation of judicial

proceedings.”        Id.      (internal quotation marks and alteration

omitted).

            Under Olano’s first prong, the forty-year prison term

which the sentencing court imposed on Smalls was erroneous.                 See

Booker, 125 S. Ct. at 755-56 (holding Sixth Amendment contravened

when sentencing court, acting pursuant to Guidelines, imposes

sentence greater than maximum authorized by facts found by jury

alone).     Under the then-mandatory Guidelines regime, the facts to

which Smalls pleaded guilty supported an offense level of 38,

resulting in a sentencing range of 262 to 327 months.            The court’s

application     of   the   §    2D1.1(d)(1)    murder   cross-reference      —

predicated on facts related to Stoeckle’s murder to which Smalls

did   not   plead    guilty    —   increased   his   offense   level   to   43,

resulting in a guideline sentence of life in prison. Under Booker,

the sentencing court erred in relying on its own fact-finding to

impose a sentence on Counts 1 and 2 in excess of 327 months.                See

Hughes, 401 F.3d at 547 (recognizing that imposition of sentence,

“in part based on facts found by the judge, . . . constituted

error”).

            Second, although Smalls’s Sixth Amendment contention was

foreclosed by our precedent at the time of his sentencing, Booker

                                       15
has “abrogated our previously settled law,” rendering plain the

error made by the sentencing court.      Hughes, 401 F.3d at 547-48.

And third, the sentencing error made by the court was prejudicial,

in that Smalls’s 480-month sentence was 153 months longer than the

maximum of 327 months authorized by the facts to which he pleaded

guilty.   See id. at 548-49.

          Finally, we are obliged to notice the plain error in

Smalls’s sentence.    See Hughes, 401 F.3d at 555-56 (exercising

discretion to notice Booker error).      As a result of this error,

Smalls was sentenced to a term of imprisonment greater than that

authorized by the facts to which he had pleaded guilty, seriously

affecting “the fairness, integrity or public reputation of [the]

judicial proceedings.”     Olano, 507 U.S. at 732 (internal quotation

marks omitted); see also Hughes, 401 F.3d at 555.    And, we have no

indication as to what sentence the court would have imposed absent

the Sixth Amendment error.       We are thus constrained to vacate

Smalls’s sentence and remand for resentencing consistent with

Booker and its progeny.6




     6
       Smalls also contends that the sentencing court erroneously
applied the murder cross-reference under § 2D1.1(d)(1) of the
Guidelines, in that (1) there was insufficient evidence that he
murdered Stoeckle, (2) there was insufficient evidence that the
murder was in the first degree, and (3) application of the murder
cross-reference violated his Tenth Amendment rights.     In these
circumstances, these contentions are patently without merit and
need not be further discussed.

                                  16
                                IV.

          Pursuant to the foregoing, we vacate Smalls’s sentence

and remand for resentencing.7

                                            VACATED AND REMANDED




     7
        Smalls’s motion to remand this case for resentencing, see
infra note 4, filed in this Court pursuant to Booker after his
appeal was initiated, is rendered moot by our disposition of the
appeal.

                                17
