                               UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                               No. 03-4972



UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

          versus


MICHAEL BURNS,

                                              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-03-30)


Submitted:   August 17, 2005            Decided:   September 19, 2005


Before MICHAEL, TRAXLER, and KING, Circuit Judges.


Affirmed in part; vacated and remanded in part by unpublished per
curiam opinion.


Leah P. Macia, BAILEY & GLASSER, LLP, Charleston, West Virginia,
for Appellant.   Kasey Warner, United States Attorney, Paula S.
Klotzbach, Assistant United States Attorney, Charleston, West
Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

           Michael Burns pleaded guilty to one count of distribution

of methamphetamine, in violation of 21 U.S.C. § 841(a)(1) (2000),

and was sentenced to 126 months in prison.          Burns now appeals.     His

attorney has filed a brief pursuant to Anders v. California, 386

U.S. 738 (1967), stating that, in her opinion, there are no

meritorious issues for review.        Subsequent to the Supreme Court’s

decision in Blakely v. Washington, 542 U.S. 296 (2004), counsel

filed a supplemental brief asserting that Burns’ sentence violated

the Sixth Amendment under Blakely.            Burns later filed a pro se

supplemental brief, contending that his sentence violated the Sixth

Amendment under United States v. Booker, 125 S. Ct. 738 (2005).            We

affirm Burns’ conviction but vacate his sentence and remand for

resentencing in light of Booker and Blakely.



                                      I

           Pursuant to a written plea agreement, Burns pleaded

guilty to distributing methamphetamine on April 29, 2002.                The

transcript of Burns’ plea colloquy discloses full compliance with

Rule 11 of the Federal Rules of Criminal Procedure.            Notably, he

admitted   that   he   sold    1.03   grams    of   methamphetamine   to    a

confidential informant.       Burns stated that he understood that the

maximum sentence to which he was exposed was twenty years and that




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his sentence would be determined under the federal sentencing

guidelines.

             Burns’ presentence report held him accountable for a

marijuana equivalency1 of 151.37 kilograms, for a base offense

level of 26.      See U.S. Sentencing Guidelines Manual § 2D1.1(c)(7)

(2002).      Two levels were added for possession of a firearm, see

USSG § 2D1.1(b)(1), and obstruction of justice, see USSG § 3C1.1,

respectively.      With an adjusted offense level of 30 and a criminal

history category of III, Burns’ guideline range was 12 to 151

months.

             At sentencing, Burns objected to the attribution to him

of   sixty    grams    of   methamphetamine   about   which   Darrell   Jones

testified before the grand jury, to one gram of the drug found on

Jones’ person, and to .67 grams found on Darrell Blankenship’s

person.      Burns did not object to the attribution to him of the

weight of drugs that were involved in six controlled purchases,

including the April 29 sale to the informant, or to drugs that were

found in a cooler at his residence.           The marijuana equivalency of

the drugs to which Burns did not object was 28.03 kilograms.

             The district court overruled the objection as to the

sixty     grams   of   methamphetamine   about    which   Jones   testified,



      1
       Controlled substances attributed to Burns as relevant
conduct included methamphetamine, marijuana, and oxycodone. The
weight of the oxycodone and methamphetamine was converted to a
marijuana equivalency.

                                     - 3 -
sustained the objection to the methamphetamine that was taken from

Blankenship, and counted only .58 grams of the methamphetamine that

was taken from Jones’ person.        The marijuana equivalency for which

the court therefore held Burns accountable had no impact on the

base offense level, which remained 26.

             Burns conceded at sentencing that he possessed a firearm

in connection with his drug trafficking but disagreed that this

fact warranted the two-level increase under USSG § 2D1.1(b)(1). The

district court overruled his objection, based in part upon the

testimony of Terry White, Burns’ wife, who stated that Burns

obtained the gun to use as protection against anyone who might try

to steal drugs or drug proceeds.

             Finally, the district court overruled Burns’ objection to

the increase for obstruction of justice for threatening to harm

White if she cooperated with authorities.          White testified that

Burns had beaten her in the past and that he threatened to harm her

if she incriminated him.        A videotape of White, showing bruises

that   she   once   sustained   at   Burns’   hands,   was   admitted   into

evidence.     The district court found that White was a credible

witness and that the increase was warranted.

             The court concluded that Burns’ offense lever was 30 and

his criminal history category was III, for a guideline range of 121

to 151 months.      Burns received a 126-month sentence.




                                     - 4 -
                                        II

             Burns first contends that admission of the videotape was

unduly prejudicial.        This argument is without merit.                  The Federal

Rules of Evidence do not generally apply at sentencing. Fed. R.

Evid.    1101(d)(3).   Further,      there         is    no    limitation         on    the

information    about   a    defendant     that      a    court       may    consider     in

sentencing a defendant.         18 U.S.C. § 3661 (2000).                      Here, the

district     court   acted    appropriately             when    it     permitted        the

introduction of the videotape.            We note that, even without this

evidence, White’s testimony was strong enough to establish that the

increase for obstruction of justice was proper.



                                      III

             In both the formal supplemental brief and Burns’ pro se

brief,   Burns   contends     that    his     sentence         violates       the      Sixth

Amendment under Booker and Blakely.                In Booker, the Supreme Court

held that the mandatory guidelines scheme which provided for

sentence   enhancements      found   by      the    court      violated       the      Sixth

Amendment.     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.         Booker, 125 S. Ct. at 746-48, 755-56

(Stevens, J.), 756-57 (Breyer, J.).




                                     - 5 -
           Subsequently, in United States v. Hughes, 401 F.3d 540,

546 (4th Cir. 2005), we held that a sentence that was imposed under

the pre-Booker mandatory sentencing scheme and was enhanced based

upon facts found by the court, not by the jury or admitted by the

defendant, constitutes plain error that affects that defendant’s

substantial rights.         In the guilty plea context, reversal is

warranted when the sentence exceeds the maximum allowed based on

the facts established by the plea or otherwise admitted by the

defendant and the record does not disclose what discretionary

sentence the district court would have imposed under an advisory

guideline scheme.      Id. at 546-47, 556.

           Here, neither the indictment nor the plea agreement

identified the amount of drugs involved in the offense.                 At the

plea    colloquy,   Burns    admitted   that   he    sold   1.03   grams    of

methamphetamine to an informant on April 29, 2002.           At sentencing,

he admitted that he should be held accountable for the April 29

controlled purchase, the weight of methamphetamine involved in five

other     controlled     purchases,     and    the     weight      of    drugs

(methamphetamine, oxycodone, and marijuana) found in a cooler at

his residence. The marijuana equivalency of the drugs for which he

conceded responsibility results in a base offense level that is

markedly less than that assigned at sentencing. Under Booker, this

error alone establishes that Burns’ sentence of 126 months stood

well above the properly calculated guideline range.             In accordance


                                   - 6 -
with Hughes, we recognize this plain error, vacate the sentence,

and remand for resentencing.2



                                       IV

            Our review of the entire record discloses no grounds for

reversal of the conviction, which we accordingly affirm. Burns’

sentence is vacated as violating Booker, and the matter is remanded

for resentencing.      In accordance with Anders, we have examined the

entire record and find no other meritorious issues for appeal.

This court requires that counsel inform her 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,

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 IN PART;
                                               VACATED AND REMANDED IN PART



     2
      As in Hughes, we express no criticism of the district court,
which sentenced Burns in accordance with the law as it existed
prior to Booker.

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