                             UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                             No. 04-4751



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

          versus


WILLIAM H. JOHNSON,

                                              Defendant - Appellant.



Appeal from the United States District Court for the Southern
District of West Virginia, at Huntington.  Robert C. Chambers,
District Judge. (CR-03-33)


Submitted:   June 13, 2005            Decided:   September 29, 2005


Before WILKINS, Chief Judge, and WIDENER and SHEDD, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Mary Lou Newberger, Federal Public Defender, David R. Bungard,
Assistant Federal Public Defender, Jonathan D. Byrne, Charleston,
West Virginia, for Appellant.      Kasey Warner, 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Unpublished opinions are not binding precedent in this circuit.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:

            William H. Johnson appeals the 135-month sentence imposed

after his case was remanded to correct an error in the computation

of his criminal history score.           United States v. Johnson, No. 03-

4662 (4th Cir. Apr. 7, 2004) (unpublished).                   On remand, Johnson

raised    objections      to   the    offense     level   calculation      and    to

imposition of a term of supervised release at resentencing, citing

Blakely v. Washington, 542 U.S. 296 (2004).               However, the district

court, following United States v. Hammoud, 381 F.3d 316 (4th Cir.

2004), vacated, 125 S. Ct. 1051 (2005), made the same findings as

at the first sentencing with respect to the offense level, and

imposed the same three-year term of supervised release.                    Johnson

now alleges that the district court’s determination of his offense

level at the resentencing hearing violated the Sixth Amendment and

that the court lacked authority to impose a term of supervised

release.    We affirm.

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

Supreme Court held that Blakely applies to the federal sentencing

guidelines and that the mandatory guidelines scheme which provided

for   sentence   enhancements        based   on   facts   found     by   the   court

violated the Sixth Amendment.           125 S. Ct. at 746-48, 755-56.            The

Court    remedied   the    constitutional         violation    by   severing     and

excising the statutory provisions that mandate sentencing and




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appellate review under the guidelines, thus making the guidelines

advisory.    Id. at 756-57.

            At his first sentencing hearing, Johnson admitted that he

was responsible for 169.5 grams of crack, which authorized the base

offense level of 34 used by the district court.              Johnson did not

contest the two-level enhancement for possession of a firearm

during the offense at his first sentencing or in his first appeal.

            At the resentencing hearing, Johnson’s ability to contest

the calculation of his offense level was governed by the mandate

rule,   which   “forecloses    litigation     of    issues   decided   by   the

district court but foregone on appeal or otherwise waived, for

example because they were not raised in the district court.”

United States v. Bell, 5 F.3d 64, 66 (4th Cir. 1993) (internal

citation omitted).     A trial court may, however, reopen an issue

otherwise foreclosed in certain circumstances, namely, a showing

that (1) “controlling legal authority has changed dramatically;”

(2) that significant new evidence has been discovered; or (3) “that

a blatant error in the prior decision will, if uncorrected, result

in a serious injustice.”           Id. at 67 (internal quotation and

citation omitted).     In light of Booker, it is clear that the law

had changed.

            Johnson’s challenge to the base offense level of 34 is

without merit because he specifically admitted distributing the

169.5   grams   of   crack    on   which    the    base   offense   level   was


                                    - 3 -
calculated.      We    need   not    decide      whether    Johnson   effectively

admitted possessing a firearm during the offense by not contesting

the enhancement before he was resentenced and by not making an

affirmative showing on remand that he had not possessed a firearm,

because the sentence did not exceed the maximum the court could

have   imposed   based    only      on   facts    Johnson    admitted.     United

States v. Evans, 416 F.3d 298, 300-01 (4th Cir. 2005).                Without the

two-level    weapon    enhancement,        and   before     the   adjustment   for

acceptance of responsibility, Johnson’s offense level would have

been 34.      See id. at n.4 (to determine Sixth Amendment error,

appellate court uses guideline range based on facts defendant

admitted      before     range      is     adjusted        for    acceptance    of

responsibility).       With offense level 34 and criminal history

category I, Johnson’s guideline range would have been 151-188

months.     Because Johnson’s sentence of 135 months did not exceed

the maximum of this range, no Sixth Amendment error occurred.

            We find no merit in Johnson’s second claim.               Booker did

not invalidate the Sentencing Reform Act in its entirety; instead,

the Supreme Court excised two provisions, 18 U.S.C.A. § 3553(b)(1)

and § 3742(e) (West 2000 & Supp. 2005), as described above, and

left the rest of the Act intact.            The Court did not invalidate 18

U.S.C.A. § 3583 (West 2000 & Supp. 2005), the provision which

authorizes imposition of a term of supervised release.                   Moreover,

a three-year term of supervised release is required under 21


                                         - 4 -
U.S.C.A. § 841(b)(1)(C) (West Supp. 2005). Therefore, the district

court did not err in imposing a term of supervised release.

          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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