                               UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                               No. 03-4539



UNITED STATES OF AMERICA,

                                                 Plaintiff - Appellee,

          versus


JOSEPH ALVIN BILLIOTT, a/k/a Al Billiott,

                                                Defendant - Appellant.



Appeal from the United States District Court for the District of
South Carolina, at Florence.   Terry L. Wooten, District Judge.
(CR-01-1152)


Submitted:   August 12, 2005                 Decided:   August 24, 2005


Before WILKINSON, NIEMEYER, and MOTZ, Circuit Judges.


Affirmed by unpublished per curiam opinion.


James T. McBratney, Jr., MCBRATNEY LAW FIRM, P.A., Florence, South
Carolina, for Appellant. J. Strom Thurmond, Jr., United States
Attorney, Dean A. Eichelberger, Assistant United States Attorney,
Columbia, South Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

          Joseph   Alvin   Billiott   appeals   the    twenty-six   month

sentence imposed after he pleaded guilty, pursuant to a plea

agreement, to one count of conspiracy to commit wire fraud, in

violation of 18 U.S.C. §§ 371, 1343 (2000).           Because we find no

error in the determination of Billiott’s sentence, we affirm.

          On appeal, Billiott asserts that his sentence violates

the Supreme Court’s holding in Blakely v. Washington, 542 U.S. 296

(2004).   He specifically asserts that the enhancements to his

offense level that were based upon more than minimal planning and

his role in the offense violated the Sixth Amendment because facts

supporting these enhancements were not found by a jury, or found by

a beyond a reasonable doubt standard.

          In United States v. Booker, 125 S. Ct. 738 (2005), the

Supreme Court applied the rationale of Blakely to the federal

sentencing guidelines and held that the mandatory guidelines scheme

that provided for sentence enhancements based on facts found by the

court violated the Sixth Amendment.     Booker, 125 S. Ct. at 746-48,

755-56 (Stevens, J., opinion of the Court). 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.          Id. at 756-57

(Breyer, J., opinion of the Court).




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            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

on facts found by the court, not by a jury (or, in a guilty plea

case, admitted by the defendant), constitutes plain error.                   That

error affects the defendant’s substantial rights and warrants

reversal under Booker when the record does not disclose what

discretionary sentence the district court would have imposed under

an    advisory    guideline      scheme.      Hughes,   401    F.3d   at   546-56.

Sentencing     courts   were     directed     to   calculate   the    appropriate

guideline range, consider that range in conjunction with other

relevant factors under the guidelines and 18 U.S.C.A. § 3553(a)

(West 2000 & Supp. 2005), and impose a sentence.                If the district

court imposes a sentence outside the guideline range, the court

should state its reasons for doing so.              Id. at 546.

            In determining the sentencing range under the sentencing

guidelines,* the probation officer enhanced the offense level by

two   levels     pursuant   to    USSG    §   2F1.1(b)(2)   because    the   crime

involved more than minimal planning or a scheme to defraud more

than one victim, and by two levels pursuant to USSG § 3B1.1(c)

because Billiott was an organizer, leader, manager, or supervisor

in the criminal activity.                After a three-level reduction for

acceptance of responsibility, Billiott’s total offense level was


       *
        U.S. Sentencing Guidelines Manual (1997) (“USSG”).

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sixteen.     This offense level and Billiott’s criminal history

category of I resulted in a sentencing range of twenty-one to

twenty-seven months of imprisonment.

            Because    Billiott    did   not   object   to   the   presentence

report, we review the district court’s guideline calculation for

plain error.    United States v. Olano, 507 U.S. 725, 732 (1993);

Hughes, 401 F.3d at 547.        Under the plain error standard, Billiott

must show: (1) there was error; (2) the error was plain; and

(3) the error affected his substantial rights.           Olano, 507 U.S. at

732-34.    Even when these conditions are satisfied, we may exercise

our 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).

            Our review of the record leads us to conclude that the

enhancement for more than minimal planning or a scheme to defraud

more than one victim was not imposed in violation of Billiott’s

Sixth   Amendment     rights.     Although     the   facts   supporting   this

enhancement were not charged in the indictment, Billiott admitted

in the plea agreement that more than one victim suffered financial

loss, thus demonstrating a scheme to defraud more than one victim.

With regard to the enhancement for Billiott’s role in the offense,

we agree with Billiott that this enhancement is not supported by

any facts alleged in the indictment or admitted by him during the

plea hearing.   We conclude, however, that no Sixth Amendment error


                                    - 4 -
occurred    in   the     imposition    of   this   enhancement.       If    this

enhancement is removed, Billiott’s total offense level would be

seventeen, and his sentencing range twenty-four to thirty months.

Because the twenty-six-month sentence imposed does not exceed the

guideline   range       calculated    without   the   improper   enhancement,

Billiott’s sentence does not violate the Sixth Amendment.                 United

States v. Evans, __ F.3d __, 2005 WL 1705531 at *1 n.4 (4th Cir.

July 22, 2005) (“For purposes of determining whether the district

court erred, we necessarily use [the] guideline range based on the

facts   [appellant]       admitted    before    adjusting   that    range    for

acceptance of responsibility.”).

            We therefore affirm Billiott’s conviction and sentence.

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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