                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 03-4514



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

          versus


RICHARD DEAN WALKER, a/k/a Ricky Walker,

                                              Defendant - Appellant.



         On Remand from the United States Supreme Court.
                       (S. Ct. No. 04-7805)



Submitted:   September 23, 2005        Decided:     November 30, 2005


Before LUTTIG, TRAXLER, and GREGORY, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Heather D. Foster, Jaqueline Ann Hallinan, HALLINAN LAW OFFICES,
P.L.L.C., Charleston, West Virginia, for Appellant. Kasey Warner,
United States Attorney, John L. File, Assistant United States
Attorney, Charleston, West Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

           Richard Dean Walker was convicted, after a guilty plea,

of aiding and abetting the possession of marijuana with intent to

distribute. We affirmed his sentence and denied rehearing. United

States v. Walker, No. 03-4514, 2004 WL 1367581 (4th Cir. June 18,

2004) (unpublished).

           Walker filed a petition for writ of certiorari in the

United States Supreme Court.     His petition was granted, and this

court’s judgment was vacated, in light of the decision in United

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

125 S. Ct. 1345 (2005).    Walker’s case has been remanded to this

court for further proceedings.

           Walker’s sentence was imposed before the decisions in

Booker and its predecessor, Blakely v. Washington, 542 U.S. 296

(2004), and he did not raise objections to his sentence based on

the mandatory nature of the sentencing guidelines or the district

court’s application of sentencing enhancements based on facts he

did not admit.   Therefore, we review his sentence for plain error.

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

           The district court calculated Walker’s guideline range as

follows:

Base offense level   16   USSG § 2D1.1 (10-20 kilograms marijuana)
                    + 2   USSG § 3C1.1 (obstruction of justice)
Final offense level 18

Criminal history category: I
Guidelines range: 27-33 months

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               The district court imposed a sentence of thirty months

imprisonment, a three-year term of supervised release, and a $2000

fine.       Walker contested the adjustment for obstruction of justice

at   sentencing,       but     the    district    court     determined    that   the

adjustment applied because Walker had made a serious attempt to

mislead      the    probation    officer.        Without     the   adjustment    for

obstruction of justice, Walker’s offense level would have been 16

and his guideline range would have been 21-27 months.                    Because the

increase was based on judge-found facts that Walker did not admit,

the resulting sentence violated the Sixth Amendment.*                      However,

Walker      has    completed    his    prison    sentence    and   been   released.

Therefore, a remand for resentencing is unnecessary unless Walker

was otherwise prejudiced.             We conclude that he was not.

               Under 21 U.S.C.A. § 841(b)(1)(D) (West Supp. 2005),

Walker was and remains subject to a term of supervised release of

“at least two years.”                Because the statutory maximum for his

offense is five years imprisonment, see id., it is a Class D

felony.      18 U.S.C. § 3559(a)(4) (2000).          Under USSG § 5D1.2(a)(2),

the supervised release term for a Class D felony is two to three

years.       Therefore, the Sixth Amendment error committed by the


        *
      Just as we noted in Hughes, “[w]e of course offer no
criticism of the district court judge, who followed the law and
procedure in effect at the time” of Walker’s sentencing. Hughes,
401 F.3d at 545 n.4. See generally Johnson v. United States, 520
U.S. 461, 468 (1997) (stating that an error is “plain” if “the law
at the time of trial was settled and clearly contrary to the law at
the time of appeal”).

                                         - 3 -
district court in determining Walker’s offense level did not affect

the statutory or guideline provisions that governed the applicable

term of supervised release.        The district court had discretion to

impose a term of supervised release of between two and three years.

The record does not reveal any basis for concluding that the court

would have imposed a lesser term under an advisory guidelines

system.   In announcing the sentence, the district court stated,

“[t]he three-year term of supervised release is imposed to allow

the maximum period of time to monitor your efforts to attain a law-

abiding lifestyle following your period of incarceration.”                  The

district court could have imposed a two-year term of supervised

release, but exercised its discretion to impose a three-year term.

Therefore, Booker does not require resentencing on this ground.

          Under     21   U.S.C.    §   841(b)(1)(D),   a   maximum   fine    of

$250,000 was authorized.          For an offense level of 18, the Fine

Table in USSG § 5E1.2(c)(3) prescribes a fine of $6000 to $60,000.

For an offense level of 16, the Fine Table prescribes a fine of

$5000 to $50,000.    The $2000 fine imposed by the district court was

a downward departure below the range the district court believed to

be applicable and is below the range that would have applied

without the obstruction of justice adjustment.              In imposing the

fine, the court made the following findings pursuant to 18 U.S.C.

§ 3572(a) (2000):

     The defendant’s income, earning capacity and financial
     resources are as stated in the presentence report; a fine

                                       - 4 -
     within the guideline range would constitute an undue
     burden upon the defendant; there is no pecuniary loss
     inflicted upon others as a result of the offense of
     conviction; the evidence shows no illegally obtained
     gains from the offense of conviction still in the
     defendant’s possession.      The court finds that the
     defendant, through prison earnings and potential earnings
     during his term of supervised release, does have the
     ability to pay a fine below the guidelines, which the
     court has imposed.

          No Sixth Amendment error occurred with respect to the

fine and the record provides no suggestion that the district court

would have imposed a lesser fine under an advisory guidelines

system.

          Accordingly,   we   affirm    the   sentence   imposed    by   the

district court.   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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