                               UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                               No. 04-4506



UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

          versus


THOMAS JUNIOR BELL,

                                              Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.   Louise W. Flanagan,
District Judge. (CR-04-41)


Submitted:   August 12, 2005            Decided:   September 14, 2005


Before NIEMEYER, MICHAEL, and MOTZ, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Thomas P. McNamara, Federal Public Defender, G. Alan DuBois,
Assistant Federal Public Defender, Raleigh, 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Unpublished opinions are not binding precedent in this circuit.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:

             Thomas Junior Bell appeals the 120-month sentence imposed

after   he   pleaded    guilty   pursuant     to   a   plea   agreement   to   an

information    charging    one   count   of    conspiracy     to   manufacture,

distribute, and possess with intent to distribute more than five

grams of methamphetamine or more than fifty grams of a mixture or

substance containing a detectable amount of methamphetamine, in

violation of 21 U.S.C. § 846 (2000) (Count One), and one count of

carrying a firearm during and in relation to a drug trafficking

crime, in violation of 18 U.S.C. § 924(c)(1)(A) (2000) (Count Two).

Because we find no error in the determination of Bell’s sentence,

we affirm.

             On appeal, Bell asserts that his sentence violates the

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

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

offense level on Count One that was based upon a substantial risk

of harm to his daughter violated the Sixth Amendment because facts

supporting that enhancement were not alleged in the information or

admitted by him.       The Government responds, asserting that there is

no plain error in Bell’s sentence because the district court

imposed the mandatory minimum sentence required by statute for each

count, and because the Government’s downward departure motion was

based only on USSG § 5K1.1, the court had no authority to depart

below those statutory minimums.


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             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).

             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




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court imposes a sentence outside the guideline range, the court

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

           Because Bell did not object to the sentencing range of

108 to 135 months of imprisonment on Count One set forth in the

presentence report (PSR) and adopted by the district court, 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, Bell 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).

           In determining the sentencing range for Count One under

the Sentencing Guidelines,* the probation officer enhanced the base

offense level by six levels pursuant to USSG § 2D1.1(b)(5)(C),

based upon the fact that the offense involved the manufacture of

methamphetamine and created a substantial risk of harm to the life

of a minor -- Bell’s one-year-old daughter who resided in the house

where Bell manufactured methamphetamine.      After a three-level

reduction for acceptance of responsibility, Bell’s total offense

level was twenty-nine.    This offense level and Bell’s criminal


     *
      U.S. Sentencing Guidelines Manual (2003) (“USSG”).

                               - 4 -
history category of III resulted in a sentencing range of 108 to

135 months of imprisonment on Count One.

          Prior to sentencing, the Government moved for a downward

departure pursuant to USSG § 5K1.1 based upon Bell’s substantial

assistance.   The district court granted the Government’s departure

motion, adopted the findings of the PSR, and sentenced Bell to

sixty months on each of Counts One and Two, to run consecutively,

for a total sentence of 120 months of imprisonment.

          Bell correctly asserts that the facts supporting the

endangerment enhancement were not alleged in the information or

admitted by him as part of his guilty plea.        If this enhancement

were removed, Bell’s offense level would be twenty-six, and his

Guideline range seventy-eight to ninety-seven months.               United

States v. Evans, 416 F.3d 298, 300 n.4 (4th Cir. 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.”).     Bell, however, benefitted from a downward

departure and received the sixty-month statutory mandatory minimum

sentence for the offense to which he pleaded guilty in Count One.

Accordingly, we conclude that Bell’s sentence does not violate the

Sixth Amendment.

          We therefore affirm Bell’s conviction and sentence.           We

dispense with oral argument because the facts and legal contentions


                                 - 5 -
are adequately presented in the materials before the court and

argument would not aid the decisional process.



                                                      AFFIRMED




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