                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 04-4152



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

          versus


KERMIT FERNANDEZ-RIVERA, a/k/a The Frog,

                                              Defendant - Appellant.


Appeal from the United States District Court for the Northern
District of West Virginia, at Martinsburg. Richard L. Williams,
Senior District Judge, sitting by designation. (CR-03-13)


Submitted:   May 11, 2005                   Decided:   July 28, 2005


Before MOTZ and SHEDD, Circuit Judges, and HAMILTON, Senior Circuit
Judge.


Affirmed by unpublished per curiam opinion.


L. Richard Walker, Assistant Federal Public Defender, Clarksburg,
West Virginia, for Appellant. Thomas E. Johnston, United States
Attorney, Thomas O. Mucklow, Assistant United States Attorney,
Martinsburg, West Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Kermit Fernandez-Rivera (“Fernandez”) appeals from his

eighty-seven month sentence imposed following his guilty plea to

distribution     of   crack    cocaine       in    violation   of    21   U.S.C.

§ 841(a)(1), (b)(1)(B) (2000).         Fernandez’s counsel filed a brief

pursuant to Anders v. California, 386 U.S. 738, 744 (1967), stating

that there were no meritorious issues for appeal, but questioning

the amount of drugs properly attributable to Fernandez.                Fernandez

has filed a pro se supplemental brief, asserting that he should be

resentenced.      Because     our   review    of   the   record    discloses    no

reversible error, we affirm Fernandez’s conviction and sentence.

            We find that Fernandez’s guilty plea was knowingly and

voluntarily entered after a thorough hearing pursuant to Fed. R.

Crim. P. 11.     Fernandez was properly advised of his rights, the

offense charged, and the maximum sentence for the offense.                     The

court also determined that there was an independent factual basis

for the plea and that the plea was not coerced or influenced by any

promises.     See North Carolina v. Alford, 400 U.S. 25, 31 (1970);

United States v. DeFusco, 949 F.2d 114, 119-20 (4th Cir. 1991).

            In his plea agreement, Fernandez stipulated to an amount

of drugs attributable to him.         The record contains no evidence of

a lesser amount, and the district court properly accepted this

stipulation in determining Fernandez’s sentence.                  Utilizing this

drug quantity, the district court properly computed Fernandez’s


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sentencing range to be 87 to 108 months.                   The district court

imposed a sentence within this range.               See United States v. Jones,

18 F.3d 1145, 1151 (4th Cir. 1994) (holding that imposition of a

sentence within the properly calculated range is not reviewable).

               In supplemental briefs, counsel and Fernandez challenge

Fernandez’s sentence under United States v. Booker,                   U.S.      ,

125 S. Ct. 738 (2005), contending that the district court erred by

treating the Sentencing Guidelines as a mandatory system for

purposes of determining his sentence.                Because Fernandez did not

object    to     the   application    of     the    Sentencing   Guidelines    as

mandatory, our review is for plain error.              United States v. White,

405 F.3d 208, 215 (4th Cir. 2005).                 To demonstrate plain error,

Fernandez must establish that error occurred, that it was plain,

and that it affected his substantial rights.                Id. (citing United

States    v.    Olano,   507   U.S.   725,    732    (1993)).    Although     “the

imposition of a sentence under the former mandatory guidelines

regime rather than under the advisory regime outlined in Booker is

error,” id. at 216-17, we find that Fernandez has failed to carry

his burden of showing that the error affected his substantial

rights.    See id. at 223; Olano, 507 U.S. at 734-35.              Because our

review of “the record as a whole provides no nonspeculative basis

for concluding that treatment of the guidelines as mandatory”

resulted in actual prejudice, this error may not be corrected on

appeal.    Fed. R. Crim. P. 52(b); White, 405 F.3d at 223.


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          As required by Anders, we have reviewed the entire record

and have found no meritorious issues for appeal.      We therefore

affirm Fernandez’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 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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