                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 05-4590



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

          versus


DARRELL BERNARD PRESSLEY,

                                              Defendant - Appellant.



Appeal from the United States District Court for the District of
South Carolina, at Florence.   C. Weston Houck, Senior District
Judge. (CR-02-930)


Submitted:   January 25, 2006          Decided:     February 24, 2006


Before WILKINSON, TRAXLER, and SHEDD, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Thomas G. Nessler, Jr., Surfside Beach, South Carolina, for
Appellant. Alfred William Walker Bethea, Jr., Assistant United
States Attorney, Florence, South Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

           Darrell Bernard Pressley pled guilty pursuant to a plea

agreement to one count of conspiracy to distribute and possess with

intent to distribute fifty grams or more of cocaine base, in

violation of 21 U.S.C. §§ 841(a)(1), 846 (2000).1           Pressley was

sentenced to a 168-month term of imprisonment.             We affirm the

conviction and sentence.

          Because   the   district    court   determined   Pressley   was

responsible for 1,428.65 grams of cocaine base and 7,708.75 grams

of powder cocaine, Pressley was assigned a base offense level of

thirty-eight.2 See U.S. Sentencing Guidelines Manual § 2D1.1(c)(1)

(2002).   The district court applied a three-level adjustment for

acceptance of responsibility, thereby giving Pressley an adjusted

offense level of thirty-five.        Because Pressley was assessed no

criminal history points, he was placed in criminal history category

I.   The resulting guideline range was 168 to 210 months.

           As Pressley did not object, the district court adopted

the findings in the Presentence Investigation Report.         Pressley’s

counsel moved the district court for a downward departure, alleging



     1
      Pressley consented to enter his plea before a magistrate
judge pursuant to 28 U.S.C. § 636 (2000).
     2
      The district court converted the two substances into their
marijuana equivalents in order to obtain a single offense level.
See USSG § 2D1.1, comment. (n.10).     The total drug weight was
therefore determined to be 30,115 kilograms of marijuana, which
resulted in a base offense level of thirty-eight.

                                - 2 -
Pressley “has not been in good health his entire life” and must

take “a number of medications . . . on a daily basis.”                         The

district    court     determined    that    “[t]he    physical    ailments     Mr.

Pressley has, though they are regrettable, they are not sufficient

to warrant downward departure.” Consequently, the court denied the

motion     for   downward     departure      and     sentenced     Pressley     to

imprisonment for 168 months.

            Pressley filed a 28 U.S.C. § 2255 (2000) motion on

February 23, 2004, in which he alleged, among other claims, that

his counsel failed to note an appeal after Pressley requested that

he do so.    In an affidavit filed May 11, 2005, Pressley’s counsel

stated    that   he    had   “no   direct    independent       recollection     of

discussing the matter of appeal with Mr. Pressley . . . .”

Therefore, the district court granted relief on this claim and,

pursuant to United States v. Peak, 992 F.2d 39, 42 (4th Cir. 1993),

vacated    Pressley’s    judgment    of    conviction    and     entered   a   new

judgment from which Pressley could appeal.

            On appeal, counsel filed a brief pursuant to Anders v.

California, 386 U.S. 738 (1967), questioning whether the magistrate

judge fully complied with the requirements of Rule 11 and whether

Pressley’s sentence was reasonable.          Pressley filed a supplemental

brief, contending that the district court improperly enhanced his

sentence for drug weights that were neither admitted to nor found

by a jury beyond a reasonable doubt, and that the district court


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erred by entering a new criminal judgment without conducting a new,

formal sentencing hearing.

               Because Pressley did not seek to withdraw his guilty plea

in the district court, we review any alleged Rule 11 error for

plain error.        See United States v. Martinez, 277 F.3d 517, 524-26

(4th Cir. 2002).          We “may notice an error that was not preserved .

. . only if the defendant can demonstrate (1) that an error

occurred, (2) that it was plain error, and (3) that the error was

material or affected the defendant’s substantial rights.”              Id. at

524.       We have reviewed the record and find no error.

               We also reject Pressley’s contention that the district

court erred when it enhanced his sentence with drug weights that

were neither admitted to nor found by a jury beyond a reasonable

doubt.       Because Pressley raises this issue for the first time on

appeal, review is for plain error.            See United States v. Evans, 416

F.3d 298, 300 (4th Cir. 2005).         To establish that a Sixth Amendment

error occurred during sentencing, a defendant must show that the

district court imposed a sentence exceeding the maximum allowed

based only on the facts to which he admitted.             Id.

               If   the    district   court    had   sentenced   Pressley   in

accordance with the lowest drug weight to which he admitted, 1.5

kilograms of cocaine base,3 his base offense level would have been


       3
      Both the Government and Pressley “stipulate[d] and agree[d]
that the quantity of cocaine base involved is in excess of 1½ kilos
with a base offense level of 38 for purposes of calculating

                                      - 4 -
thirty-eight.      See USSG § 2D1.1(c)(1).      Based on an offense level

of thirty-eight and a criminal history category of I, Pressley’s

guideline range would have been 235 to 293 months’ imprisonment.

See   USSG   Ch.   5,   Pt.   A   (2002)   (sentencing   table).     Because

Pressley’s sentence of 168 months is below the maximum authorized

by the facts to which he admitted, no Sixth Amendment error

occurred.    See Evans, 416 F.3d at 300.

             However, “even in the absence of a Sixth Amendment

violation, the imposition of a sentence under the former mandatory

guidelines regime rather than under the advisory regime outlined in

Booker is error.”       United States v. White, 405 F.3d 208, 216-17

(4th Cir.), cert. denied, 126 S. Ct. 668 (2005).          We have declined

to presume prejudice, id. at 217-22, and instead have held that the

prejudice inquiry is “whether after pondering all that happened

without stripping the erroneous action from the whole, . . . the

judgment was . . . substantially swayed by the error.”             Id. at 223

(internal quotation marks and citations omitted).            Therefore, to

make this showing, a defendant must “demonstrate, based on the

record, that the treatment of the guidelines as mandatory caused

the district court to impose a longer sentence than it otherwise

would have imposed.”      Id. at 224.




[Pressley’s] sentence pursuant to the United States Sentencing
Commission Guidelines.”

                                     - 5 -
           The district court’s 168-month sentence was at the lowest

end of the guideline range, as determined by the court.         Because

the record does not reveal a nonspeculative basis for concluding

that the district court would have imposed a shorter sentence had

it known it possessed discretion to do so, we conclude that

Pressley cannot demonstrate that the district court’s plain error

in sentencing him under a mandatory guidelines regime affected his

substantial rights.

           We likewise reject Pressley’s argument that a defendant

is entitled to a new sentencing hearing when a district court

reenters a criminal judgment pursuant to United States v. Peak, 992

F.2d 39 (4th Cir. 1993).

           In accordance with Anders, we have reviewed the entire

record in this case and have found no meritorious issues for

appeal.   Accordingly we affirm Pressley’s conviction 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   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




                                 - 6 -
materials   before   the   court   and     argument   would   not   aid   the

decisional process.

                                                                    AFFIRMED




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