                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 05-5022



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

          versus


DREAMMA LYNN MONTGOMERY,

                                              Defendant - Appellant.



Appeal from the United States District Court for the Southern
District of West Virginia, at Parkersburg. Joseph Robert Goodwin,
District Judge. (CR-02-274)


Submitted:   May 19, 2006                  Decided:   July 19, 2006


Before WILLIAMS, TRAXLER, and GREGORY, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Christopher S. Morris, DINSMORE & SHOHL, L.L.P., Charleston, West
Virginia, for Appellant. Philip H. Wright, Acting United States
Attorney, Stephanie L. Haines, Assistant United States Attorney,
Huntington, West Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Dreamma Lynn Montgomery pled guilty to one count of

distributing a quantity of crack cocaine, in violation of 21 U.S.C.

§   841(a)(1)   (2000).    The      district   court    sentenced   her   to   a

140-month term of imprisonment.              Relying on United States v.

Booker, 543 U.S. 220 (2005), Montgomery appeals her sentence and

asserts that it violates the Sixth Amendment.             We affirm.

            Montgomery contends that, in the absence of findings by

the jury or admissions by her, the district court violated her

Sixth     Amendment   rights   by    determining       drug   quantity    by   a

preponderance of the evidence. She therefore concludes that she is

entitled to resentencing.        The Government asserts, however, that

Montgomery withdrew an objection to the recommendation in the

presentence report holding her accountable for five ounces of crack

cocaine and that such withdrawal constituted an admission under

Booker.

            In United States v. Milam, 443 F.3d 382, 383 (4th Cir.

2006), we held that a defendant’s failure to object to the facts

set forth in the presentence report did not amount to an admission

for Sixth Amendment purposes.          The court noted that the “Sixth

Amendment protections can be bypassed[] [i]f the defendant . . .

admits the fact otherwise committed to the jury.”                Id. at 387.

A defendant may admit facts through “guilty pleas and stipulations,

a defendant’s own statements in open court, and representations by


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counsel.”           United States v. Revels, __ F.3d __, __, 2006 WL

1134148, at *2 (4th Cir. May 1, 2006) (citations omitted).                       “Any

admission of fact must, of course, be of sufficient clarity and

kind to justify taking the fact from the jury.”                 Milam, 443 F.3d at

387.       Whether a defendant has admitted a fact for Booker purposes

depends upon where a defendant’s “verbalizations . . . fall along

a spectrum” from silence to “statements such as ‘I admit,’ or the

functional equivalent thereof.”              Revels, __ F.3d at __, 2006 WL

1134148,      at     *2   (holding   that    defendant    did    not   admit   facts

supporting          sentencing    enhancement     where    he    lodged      Blakely*

objection and replied “No, sir” to court’s inquiry as to “whether

he   had     objections     to    anything   contained    or    omitted   from    the

[presentence report]”).

               Here, the presentence report attributed to Montgomery

five       ounces    of   crack   based    upon   the   fact    that   she   told   a

confidential informant that she “did not have an ‘8-ball’ because

‘Jennifer’ had flushed ‘five ounces’ down the toilet during an

incident when the police arrived at Jennifer’s house.” (J.A. 124).

Montgomery objected to the five-ounce amount on the ground that the

controlled substance was marijuana — not crack cocaine.                      Because

Montgomery refused to admit that the controlled substance was crack

cocaine, the presentence report did not recommend a downward

adjustment for acceptance of responsibility.


       *
        Blakely v. Washington, 542 U.S. 296 (2004).

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          At the sentencing hearing, counsel represented that,

after listening to a tape-recorded conversation between Montgomery

and the informant during the controlled buy, Montgomery sought to

withdraw the objection that the substance was not crack cocaine.

Thus, the district court denied Montgomery’s objection as moot. In

light of the court’s ruling, the Government then stated that “in

light of the fact . . . that Ms. Montgomery has and is willing to

accept responsibility for the five ounces of crack cocaine, it is

the recommendation of the Government that she receive the three

acceptance of responsibility points.”   (J.A. 72).

          Taking these circumstances “as a whole,” Revels, __ F.3d

at __, 2006 WL 1134148, at *2, the Government’s statement operated

as the functional equivalent of a stipulation regarding the five

ounces of crack cocaine, with the attendant three-level downward

adjustment for acceptance of responsibility inuring to Montgomery’s

benefit. Because the presentence report’s recommendation regarding

acceptance of responsibility hinged entirely on Montgomery’s denial

that the controlled substance was crack cocaine, the Government’s

statement and Montgomery’s tacit assent to the reduction for

acceptance of responsibility permit us to conclude that Montgomery

knowingly waived her Sixth Amendment rights with respect to the

five ounces of crack cocaine and that she admitted responsibility

for that amount.




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          Based on her admission, Montgomery was subject to a base

offense level of thirty-two. See USSG § 2D1.1(c)(4) (applicable to

offenses involving at least fifty but less than 150 grams of

crack).      Without   any    downward     adjustment    for    acceptance    of

responsibility, see United States v. Evans, 416 F.3d 298, 300 n.4

(4th Cir. 2005), and with a criminal history category of III, the

applicable    guideline      range   would    be   151   to    188   months   of

imprisonment.    Because the 140-month sentence Montgomery received

is below the guideline range calculated based upon her admission,

no Sixth Amendment error occurred.           See United States v. Hughes,

401 F.3d 540, 547-48 (4th Cir. 2005) (discussing plain error

standard of review).

          Accordingly,       we   affirm     Montgomery’s      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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