                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 04-5111



UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

          versus


NELSON ROSADO, a/k/a Day-Day,

                                            Defendant - Appellant.



Appeal from the United States District Court for the District of
Maryland, at Baltimore. Marvin J. Garbis, Senior District Judge.
(CR-03-335-MJG)


Submitted:   February 28, 2006              Decided:   July 3, 2006


Before NIEMEYER, MICHAEL, and GREGORY, Circuit Judges.


Dismissed by unpublished per curiam opinion.


Harry D. McKnett, Columbia, Maryland, for Appellant. Rod J.
Rosenstein, United States Attorney, Paul M. Tiao, Assistant United
States Attorney, Baltimore, Maryland, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

           Nelson Rosado pled guilty to one count of conspiracy to

distribute cocaine base. He was sentenced to a term of seventy-two

months’ imprisonment.      Rosado appealed, and subsequently filed a

motion to remand requesting that his case be returned to the

district court for resentencing in accordance with United States v.

Booker, 543 U.S. 220 (2005).

           Rosado contends that the appellate waiver set forth in

his plea agreement was modified by comments made by the district

court during the plea colloquy and sentencing hearing.         The United

States’ silence in the face of those comments, he asserts, operated

to alter the plea agreement and permit him to appeal.             We have

thoroughly reviewed the record and conclude that this contention is

without   merit.   Next,    Rosado   argues   that   the   district   court

sentenced him in violation of Booker by treating the guidelines as

mandatory.    Our review discloses that any Sixth Amendment error

arising from Rosado’s sentence is harmless.          See United States v.

Rodriguez, 433 F.3d 411, 416 (4th Cir. 2006).              Holding Rosado

accountable for the fifty grams of cocaine base set forth in the

indictment to which he pled guilty, the resulting guideline range

would still be higher than the seventy-two month sentence imposed.

Thus Rosado was not prejudiced by the alleged Booker error.

           We accordingly grant the Government’s motion to dismiss.

We deny Rosado’s motion to remand and dispense with oral argument


                                 - 2 -
because the facts and legal contentions are adequately presented in

the materials before the court and argument would not aid the

decisional process.



                                                         DISMISSED




                              - 3 -
