                               UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                               No. 04-4287



UNITED STATES OF AMERICA,

                                                 Plaintiff - Appellee,

          versus


LYNN GARY SMITH,

                                                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. James C. Fox, Senior
District Judge. (CR-03-93)


Submitted:   August 15, 2005                 Decided:   August 26, 2005


Before WILLIAMS, KING, and GREGORY, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Walter H. Paramore, III, LAW OFFICES OF WALTER H. PARAMORE, III,
P.C., Jacksonville, North Carolina, for Appellant.       Frank D.
Whitney, United States Attorney, Anne M. Hayes, Christine Witcover
Dean, Assistant United States Attorneys, Raleigh, North Carolina,
for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

           Lynn   Gary   Smith   appeals   his   seventy-month   sentence

imposed after he pled guilty to being a felon in possession of a

firearm (Count 1), in violation of 18 U.S.C. § 922(g)(1) (2000),

and possessing with intent to distribute at least five grams of

crack cocaine (Count 2) in violation of 21 U.S.C. § 841(a)(1)

(2000).1   Smith’s counsel has filed a brief, as supplemented,

pursuant to Anders v. California, 386 U.S. 738 (1967), asserting

that Smith’s sentence is unconstitutional in light of Blakely v.

Washington, 542 U.S. 296 (2004), and United States v. Booker, 125

S. Ct. 738 (2005).   Counsel states, however, that in his view there

are no meritorious issues for appeal.        Smith was informed of his

right to file a pro se supplemental brief but has not done so.         We

affirm.2

           Smith’s counsel first asserts that the district court

sentenced Smith in violation of the Sixth Amendment because the

court determined drug quantity by a preponderance of the evidence.

Because Smith did not raise this issue in the district court, we

review for plain error.    See United States v. Hughes, 401 F.3d 540,



     1
      Smith also pled guilty to using or carrying a firearm during
and in relation to a drug trafficking crime, in violation of 18
U.S.C.A. § 924(c) (West 2000 & Supp. 2005). He does not challenge
on appeal his conviction or consecutive sixty-month sentence.
     2
      In light of our disposition of this case, we deny the
Government’s motion and supplemental motion for summary affirmance
as moot. See 4th Cir. R. 27(f).

                                  - 2 -
547 (4th Cir. 2005).           To demonstrate plain error, Smith must

establish that error occurred, that it was plain, and that it

affected his substantial rights.           Id. at 547-48.      If a defendant

establishes     these      requirements,    the     court’s   “discretion    is

appropriately exercised only when failure to do so would result in

a miscarriage of justice, such as when the defendant is actually

innocent or the error seriously affects the fairness, integrity or

public reputation of judicial proceedings.”             Id. at 555 (internal

quotation marks and citation omitted).

            In Booker, the Supreme Court held that the mandatory

manner in which the federal sentencing guidelines required courts

to impose sentencing enhancements based on facts found by the court

by a preponderance of the evidence violated the Sixth Amendment.

125 S. Ct. at 746, 750 (Stevens, J., opinion of the Court).                 The

Court     remedied   the     constitutional       violation   by   making   the

Guidelines advisory through the removal of two statutory provisions

that had rendered them mandatory. Id. at 746 (Stevens, J., opinion

of the Court); id. at 756-67 (Breyer, J., opinion of the Court).

            Here, the district court attributed to Smith 14.3 grams

of crack cocaine,3 thereby establishing a base offense level of

twenty-six under U.S. Sentencing Guidelines Manual § 2D1.1(c)(7)

(2003).     With a criminal history category of II, the applicable


     3
      The court also attributed 9.7 grams of marijuana to Smith.
This amount does not affect the calculation of Smith’s offense
level.

                                    - 3 -
guideline range was seventy to eighty-seven months of imprisonment.

Using only the amount of crack charged in Count 2 of the indictment

(i.e., five grams), the base offense level — and, consequently, the

guideline range — is the same as that established by the district

court. See USSG § 2D1.1(c)(7) (providing for base offense level of

twenty-six where offense involves at least five but less than

twenty grams of crack).        We therefore find no plain error in

Smith’s sentence because the sentence does not violate the Sixth

Amendment.

           Next, counsel asserts that Smith’s sentence violates

Booker   because   the   district   court   sentenced   Smith   under   the

mandatory sentencing guidelines scheme and did not consider the

factors in 18 U.S.C.A. § 3553(a) (West 2000 & Supp. 2005).              We

review this claim for plain error and find none.                See United

States v. White, 405 F.3d 208, 215 (4th Cir. 2005) (stating

standard of review).     Although we held in White that treating the

guidelines as mandatory constitutes plain error, see id. at 216-17,

our review of the record leads us to conclude that there is no

nonspeculative basis on which we could conclude that the district

court would have sentenced Smith to a lesser sentence had the court

proceeded under an advisory guideline scheme.            See id. at 223

(finding that defendant failed to meet burden of demonstrating

actual prejudice where “the district court made certain statements

suggesting that it was content to sentence [the defendant] within


                                    - 4 -
the guideline range”).       Thus, Smith has failed to demonstrate that

the plain error in sentencing him under a mandatory guidelines

scheme affected his substantial rights.

            In accordance with Anders, we have reviewed the entire

record    for   any     meritorious     issues      and     have    found     none.

Accordingly, we affirm Smith’s convictions and sentence.                        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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