                               UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                               No. 05-4084



UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

          versus


JOSEPH PULLINS,

                                              Defendant - Appellant.


Appeal from the United States District Court for the Southern
District of West Virginia, at Charleston. David A. Faber, Chief
District Judge. (CR-04-126)


Submitted:   August 31, 2005            Decided:   September 30, 2005


Before MOTZ, TRAXLER, and SHEDD, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Carl J. Dascoli, Jr., MICHAEL R. CLINE LAW OFFICES, Charleston,
West Virginia, for Appellant.      Kasey Warner, United States
Attorney, Edward J. Kornish, Special 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Unpublished opinions are not binding precedent in this circuit.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:

           Joseph Pullins appeals from his twenty-seven month prison

sentence for conspiracy to distribute cocaine in violation of 21

U.S.C. § 846 (2000).1        Finding no reversible error, we affirm.

           Pullins        claims   that    the     district   court   improperly

sentenced him when it imposed a sentence greater than the maximum

authorized by the facts in the indictment to which he pled guilty.

Because Pullins failed to raise this claim below, we must review it

for plain error.      United States v. Hughes, 401 F.3d 540, 547 (4th

Cir. 2005).       Pullins pled guilty to conspiracy to distribute

cocaine on October 14, 2003.              At sentencing, the district court

found Pullins responsible for cocaine equivalent to 11.95 kilograms

of   marijuana,     but    only    3.647    kilograms    of   that    amount   is

attributable   to    Pullins’      actions    on    October   14.     That   3.647

kilograms of marijuana equivalent results in a base offense level

of twelve, not the offense level of sixteen upon which Pullins’

sentence was calculated.2            Applying offense level twelve3 and



      1
       Pullins does not challenge his conviction.
      2
      Just as we noted in Hughes, 401 F.3d at 545 n.4, “[w]e of
course offer no criticism of the district judge, who followed the
law and procedure in effect at the time” of Pullins’ sentencing.
      3
      As in United States v. Evans, 416 F.3d 298 (4th Cir. 2005),
for purposes of determining whether a Sixth Amendment violation
occurred, the sentence imposed on Pullins is compared against the
guideline range he should have received, based on a jury verdict or
admitted conduct, excluding the adjustment for acceptance of
responsibility.

                                      - 2 -
Pullins’ criminal history category of IV, Pullins’ sentencing range

would have been twenty-one to twenty-seven months.                         Pullins’

sentence     of    twenty-seven    months    fell    within     that    range.     As

Pullins’ sentence did not exceed the maximum authorized by the

facts of the offense to which he pled guilty, no Sixth Amendment

violation     occurred      that    affected        his    substantial      rights.

Accordingly, the district court did not commit plain error.                        See

Evans, 416 F.3d at 298.

             To the extent Pullins argues that the district court’s

treatment     of    the   sentencing   guidelines         as   mandatory   requires

resentencing, this claim also fails.             Although Pullins is correct

that   the   district     court    erred    in   treating      the    guidelines   as

mandatory, see Hughes, 401 F.3d at 547-48, we have held that in the

plain error context, the error of sentencing under the mandatory

guidelines regime does not warrant a presumption of prejudice, nor

is it a structural error.          United States v. White, 405 F.3d 208,

224 (4th Cir. 2005).        Nothing in the record suggests the error in

applying the guidelines as mandatory affected the court’s ultimate

determination of Pullins’ sentence.              Accordingly, Pullins cannot

satisfy the prejudice requirement of the plain error standard.

             Accordingly, we affirm Pullins’ sentence.                  We dispense

with oral    argument      because the facts        and   legal      contentions are




                                       - 3 -
adequately   presented   in   the    materials   before   the   court   and

argument would not aid the decisional process.


                                                                 AFFIRMED




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