                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 04-4030



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

          versus


DAVID LOFTON,

                                              Defendant - Appellant.



Appeal from the United States District Court for the District of
South Carolina, at Florence.   C. Weston Houck, Senior District
Judge. (CR-02-1278)


Submitted:   September 28, 2005           Decided:   January 5, 2006


Before WILKINSON, NIEMEYER, and SHEDD, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Michael A. Meetze, Assistant Federal Public Defender, Florence,
South Carolina, for Appellant. Rose Mary Parham, Assistant United
States Attorney, Florence, South Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

           David    Lofton    appeals    his   conviction     and    188-month

sentence imposed following his guilty plea to possession of a

firearm after having been convicted of a felony, in violation of 18

U.S.C. §§ 922(g)(1), 924(e) (2000).            For the reasons discussed

below, we affirm.

           Lofton’s counsel filed a brief pursuant to Anders v.

California,   386   U.S.     738   (1967),   stating   that   there     are   no

meritorious grounds for appeal but raising the following potential

issues: (1) whether the district court erred in denying Lofton’s

pretrial motion for a hearing pursuant to Franks v. Delaware, 438

U.S. 154 (1978); (2) whether the district court erred in denying

Lofton’s motion to suppress; (3) whether the magistrate judge

conducted a thorough colloquy pursuant to Rule 11 of the Federal

Rules of Criminal Procedure; and (4) whether the district court

erred in assigning Lofton a base offense level of 34 based on its

finding that Lofton possessed the firearm during the commission of

a   controlled   substance     offense   pursuant      to   U.S.    Sentencing

Guidelines Manual (“USSG”) § 4B1.4(b)(3)(A) (2002).                Lofton filed

a pro se supplemental brief, raising additional claims.

           As to counsel’s first issue, under Franks, a defendant is

entitled to a hearing to challenge a facially sufficient affidavit

only when (1) the defendant makes “allegations of deliberate

falsehood or of reckless disregard for the truth” and supports his


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allegations with a detailed offer of proof including affidavits

and/or   sworn   statements,    and   (2)   the   affidavit   without   the

allegedly false statements is insufficient to show probable cause.

Franks, 438 U.S. at 171-72; see also United States v. Colkley, 899

F.2d 297, 300-03 (4th Cir. 1990) (discussing scope of Franks).

Specifically, the defendant must make a “substantial preliminary

showing that a false statement knowingly and intentionally, or with

reckless disregard for the truth, was included by the affiant in

the warrant affidavit.”     Franks, 438 U.S. at 155-56.       Based on our

review of the record, we find that Lofton failed to make such a

showing and therefore uphold the district court’s denial of his

motion for an evidentiary hearing under Franks.

           Counsel next questions whether the district court erred

in denying Lofton’s motion to suppress.             We review the legal

conclusions underlying the denial of a motion to suppress de novo

and review factual findings for clear error.           Ornelas v. United

States, 517 U.S. 690, 699 (1996); United States v. Rusher, 966 F.2d

868, 873 (4th Cir. 1992).      Reviewing the evidence in the light most

favorable to the Government, see United States v. Seidman, 156 F.3d

542, 547 (4th Cir. 1998), we find no error in the district court’s

denial of the motion.     Our review of the record reveals that the

district court correctly upheld the officers’ entry into Lofton’s

residence and found that the firearms were properly seized pursuant

to the plain view doctrine.


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              Counsel’s third issue questions whether the magistrate

judge conducted a thorough Rule 11 colloquy.             A plea is presumed to

be final and binding if the Rule 11 hearing is adequate.                     United

States v. Puckett, 61 F.3d 1092, 1099 (4th Cir. 1995).                   We have

thoroughly reviewed the transcript of Lofton’s plea hearing and

conclude that the magistrate judge conducted a thorough Rule 11

colloquy in accordance with the mandates of the rule. Accordingly,

Lofton cannot show that his plea was unknowing or involuntary.

              Before turning to counsel’s remaining sentencing issue,

we will consider the larger issue of whether Lofton’s sentence was

imposed in violation of United States v. Booker, 125 S. Ct. 738

(2005).      We have reviewed Lofton’s sentence for plain error in

light of Booker, and find that any error in the district court’s

designation of Lofton as a career offender, its imposition of a

four-level enhancement pursuant to USSG § 2K2.1(b)(5),* or its

treatment of the guidelines as mandatory did not affect Lofton’s

substantial rights. See United States v. Cheek, 415 F.3d 349, 351-

54   (4th    Cir.    2005)   (holding    that   the    armed   career   criminal

designation based on prior convictions does not violate Booker);

United      States   v.   White,   405   F.3d   208,    225    (4th   Cir.   2005)

(requiring an appellant to demonstrate actual prejudice from the



      *
      We find that this enhancement did not impact the total
offense level because the district court found Lofton to be a
career offender.   See United States v. Collins, 412 F.3d 515,
523-24 (4th Cir. 2005).

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application of the mandatory guideline scheme on plain error

review).

             As for the remaining Anders issue, counsel argues that

the district court erred in ruling that Lofton possessed the

firearms in connection with a controlled substance offense pursuant

to USSG § 4B1.4(b)(3)(A).             This finding subjected Lofton to an

offense level of 34, rather than an offense level of 33.                    See USSG

§ 4B1.4(b)(3).      Although counsel does not raise this issue in the

Booker context, we note that this finding was based on facts that

were   not   admitted   by    Lofton     nor   proved      to   a    jury   beyond    a

reasonable doubt.       We discern no error under Booker, however.

Absent the one-level increase for possessing the firearms in

connection with a controlled substance offense, Lofton’s maximum

offense level, based on facts to which he admitted, would have been

33.    An offense level of 33 with a criminal history category of VI

results in a guideline range of 235-293 months.                     Because Lofton’s

188-month sentence does not exceed the maximum sentence authorized

by the facts he admitted, we find there was no Sixth Amendment

violation.     See United States v. Evans, 416 F.3d 298 (4th Cir.

2005).

             In accordance with the requirements of Anders, we have

reviewed     the   entire    record    in    this   case    and      have   found    no

meritorious issues for appeal.              We have also reviewed the issues

raised in Lofton’s pro se supplemental brief and find them without


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merit.   Accordingly, we affirm Lofton’s conviction and sentence.

We deny Lofton’s “Motion to Correct Error of Factual and Actual

Innocence.” This court requires that counsel inform his client, in

writing, of his right to petition the Supreme Court of the United

States for further review.    If the client requests that a petition

be filed, but counsel believes that such a petition would be

frivolous, then counsel may move in this court for leave to

withdraw from representation.    Counsel’s motion must state that a

copy thereof was served on the client.       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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