                              UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                              No. 05-4879



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)


Submitted:   April 17, 2006                 Decided:   June 13, 2006


Before WILKINSON, LUTTIG,* and GREGORY, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Andrew J. Savage, III, SAVAGE & SAVAGE, P.A., Charleston, South
Carolina, for Appellant. Robert Hayden Bickerton, Assistant United
States Attorney, Charleston, South Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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



     *
      Judge Luttig was a member of the original panel but did not
participate in this decision. This opinion is filed by a quorum of
the panel pursuant to 28 U.S.C. § 46(d).
PER CURIAM:

           Terrance L. Smalls appeals following a remand to the

district court for resentencing.              After considering the issues

raised on appeal, we affirm the sentence imposed by the district

court on remand.

           Smalls pled guilty to one count of conspiracy to possess

with intent to distribute an unspecified quantity of cocaine and

cocaine base, in violation of 21 U.S.C. §§ 841(a)(1) and 846 (2000)

(“Count One”) and one count of possession with intent to distribute

an unspecified quantity of cocaine base, in violation of 21 U.S.C.

§ 841(a)(1) (“Count Two”).            Smalls received a sentence of 480

months of imprisonment to be followed by a term of three years’

supervised release. Though this court affirmed Smalls’ conviction,

we concluded that Smalls’ sentence violated his Sixth Amendment

rights under United States v. Booker, 543 U.S. 220 (2005), because

it exceeded the maximum sentence allowable given the facts admitted

by him.   United States v. Smalls, 134 Fed. Appx. 609, 616, 2005 WL

1395162 (4th Cir. 2005) (unpublished).                   Therefore, we vacated

Smalls’ sentence and remanded for resentencing.

           On    remand,   the   district        court    received   a   revised

presentence     report   and   held    a   new   sentencing     hearing.      The

presentence     report   found   over      1.5   kilograms    of   cocaine   base

attributable to Smalls and that the murder of Audrey Stoeckle was

part of and in furtherance of the underlying conspiracy; thus,


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Smalls’ advisory guidelines range was life imprisonment.               United

States Sentencing Guidelines §§ 2A1.1, 2D1.1(c), 2D1.1(d)(1), & Ch.

5, Pt. A (Sentencing Table) (2003) (“USSG”).                 However, because

neither count specifically stated a drug quantity, sentencing under

both counts was capped by the applicable statutory maximum of

twenty years’ imprisonment.          21 U.S.C. § 841(b)(1)(C) (2000).

Given   that   the   highest   statutory     maximum   was   lower   than    the

guidelines’    punishment,     the   presentence    report     employed     USSG

§ 5G1.2(d) (2003) to impose consecutive terms of imprisonment.

           At sentencing, Smalls challenged the legality of his

stipulation to a specific quantity of cocaine base in light of the

fact that the indictment stated no such quantity. Smalls contended

such a stipulation was illegal because it triggered a statutory

provision with a ten-year mandatory minimum term of imprisonment

and a maximum of life imprisonment.           After hearing argument from

Smalls, his attorney, and the Government, the district court

concluded that the resentencing hearing was not the appropriate

forum for resolving Smalls’ contention. The court sentenced Smalls

to a total of 480 months’ imprisonment, which consisted of two

consecutive 240-month sentences, to be followed by three years of

supervised release, and a $200 special assessment. Smalls appealed

his sentence; his attorney filed a brief in accordance with Anders

v. California, 386 U.S. 738 (1967), raising four issues.               Smalls




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was notified of his right to file a pro se supplemental brief but

declined to do so.

               Smalls first argues the district court violated his due

process rights in sentencing him based upon facts determined by a

preponderance of the evidence.                As Smalls did not raise this

argument to the district court, this court reviews for plain error.

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

States v. Martinez, 277 F.3d 517, 524 (4th Cir. 2002).                         Under the

plain error standard, Smalls              must show:    (1) there was error; (2)

the error was plain; and (3) the error affected his substantial

rights.   United States v. Olano, 507 U.S. 725, 732-34 (1993).                       When

these    conditions       are    satisfied,    this    court      may    exercise      its

discretion      to     notice   the   error   only     if   the    error     “seriously

affect[s] the fairness, integrity or public reputation of judicial

proceedings.”        Id. at 736 (internal quotation marks omitted).                    The

burden of showing plain error is on the defendant.                       United States

v. Strickland, 245 F.3d 368, 379-80 (4th Cir. 2001).

               After    the     Supreme    Court’s     decision         in   Booker,    a

sentencing court must still calculate and consider the guideline

range, as well as consider the factors set forth in 18 U.S.C.A.

§ 3553(a) (West 2000 & Supp. 2005).                United States v. Green, 436

F.3d    449,    455-56    (4th    Cir.    2006);   Hughes,        401   F.3d    at   546.

Further, sentencing courts are not obligated, post-Booker, to

determine enhancements by a higher standard.                 See Hughes, 401 F.3d


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at 546 (consistent with the Booker remedial scheme, “a district

court shall first calculate (after making the appropriate findings

of fact) the range prescribed by the guidelines”); see also United

States v. Mares, 402 F.3d 511, 519 (5th Cir.) (“[t]he sentencing

judge is entitled to find by a preponderance of the evidence all

the facts relevant to the determination of a Guideline sentencing

range   and    all    facts     relevant        to    the    determination        of    a

non-Guidelines sentence”), cert. denied, 126 S. Ct. 43 (2005);

McReynolds    v.     United    States,    397        F.3d   479,   481     (7th   Cir.)

(explaining that “[t]he remedial portion of Booker held that

decisions about sentencing factors will continue to be made by

judges, on the preponderance of the evidence. . . .”), cert.

denied, 125 S. Ct. 2559 (2005).            Accordingly, this claim fails.

          Smalls       next     argues    the        district      court    erred      in

considering the stipulation contained in his plea agreement as to

the quantity of cocaine base attributable to him because that

stipulation was illegal, involuntary, and unknowingly.                        Because

Smalls raised this issue at sentencing, we review the district

court’s factual findings for clear error and its related legal

conclusions,       including      the    application         of     the    sentencing

guidelines, de novo.          Green, 436 F.3d at 456.

          While Smalls did in fact stipulate that he was personally

responsible for over 500 grams but less than 1.5 kilograms of

cocaine base, the district court had no cause to rely on this


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stipulation in sentencing Smalls. The presentence report presented

a thorough and detailed basis for its determination that over 1.5

kilograms of cocaine base were attributable to Smalls.              Further,

the quantity issue ultimately had no impact on Smalls’ sentence as

the murder cross-reference raised Smalls’ total offense level to

forty-three.     USSG §§ 2A1.1 & 2D1.1(d)(1).        Accordingly, Smalls’

claim lacks merit because there is no support for his contention

that the district court relied on this stipulation in determining

Smalls’ sentence.

            Smalls’ third assignment of error relates to the district

court’s imposition of consecutive sentences.              Because Smalls did

not raise this issue below, we review for plain error.           Hughes, 401

F.3d at 547; Martinez, 277 F.3d at 524.               The district court

committed   no   error   in    imposing     consecutive    sentences.    The

application of the murder cross-reference raised Smalls’ offense

level to forty-three.         USSG § 2A1.1.       This, coupled with the

corrected criminal history category of II, yielded a sentencing

range of life imprisonment.       USSG Ch. 5, Pt. A (Sentencing Table).

However, because of the twenty-year statutory maximums applicable

to these offenses, the court could not impose a life sentence.

Given that the guidelines’ punishment was less than the statutory

maximum, USSG § 5G1.2(d) required that the court impose consecutive

sentences. There was no error in applying this guideline to impose

consecutive sentences.        See United States v. White, 238 F.3d 537,


                                    - 6 -
543 (4th Cir. 2001) (holding, in a factually analogous situation,

that the district court “would have been obligated” to impose

consecutive sentences to achieve “the total punishment mandated by

the guidelines”).

            Smalls’ last argument, also raised for the first time on

appeal, is that the district court erred in applying the murder

cross-reference because Ms. Stoeckle’s murder should not have been

considered conduct relevant to Count Two.              Because Smalls did not

raise this claim below, we review for plain error.                   Hughes, 401

F.3d at 547; Martinez, 277 F.3d at 524.

            In his brief, Smalls concedes that the district court

grouped Counts One and Two pursuant to USSG § 3D1.2(d) (2003).                 For

offenses    grouped    under   USSG   §   3D1.2(d),     relevant     conduct    is

broadly defined to include “all acts and omissions described in

subdivisions (1)(A) and (1)(B) above that were part of the same

course of conduct or common scheme or plan as the offense of

conviction.”       USSG § 1B1.3(a)(2) (2003).            This includes “all

reasonably foreseeable acts and omissions of others in furtherance

of    the    jointly     undertaken       criminal       activity.”         USSG

§ 1B1.3(a)(1)(B) (2003).

            Given that the court grouped Counts One and Two, there is

simply no support for Smalls’ contention that Ms. Stoeckle’s murder

was   considered    relevant   conduct     only   as    to   Count   Two.      The

indictment stated the relevant time frame for Count One as January


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1, 1992 to July 31, 1998.     Smalls and his co-defendant murdered Ms.

Stoeckle   in   July   1994   because   they   believed   she   was   a   law

enforcement informant.        Smalls admitted driving with his co-

defendant to the site of Ms. Stoeckle’s murder, shooting his

firearm into the ground near her several times, and that one of

those shots could have hit Ms. Stoeckle.         Ms. Stoeckle’s murder —

committed to silence a suspected informant — was a reasonably

foreseeable event in furtherance of the conspiracy that occurred

within the time frame alleged for the conspiracy.                Thus, the

application of the murder cross-reference was appropriate.

           For the foregoing reasons, we affirm Smalls’ sentence.

We have, as required by Anders, reviewed the record and have found

no meritorious issues for appeal. 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 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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