                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 04-4261



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

          versus


JOHNIE LYNN HAINES,

                                              Defendant - Appellant.



Appeal from the United States District Court for the Northern
District of West Virginia, at Elkins. Robert E. Maxwell, Senior
District Judge. (CR-01-18)


Submitted:   October 26, 2005             Decided:   January 4, 2006


Before LUTTIG, KING, and SHEDD, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Barron M. Helgoe, VICTOR, VICTOR & HELGOE, L.L.P., Charleston, West
Virginia, for Appellant.      Thomas E. Johnston, United States
Attorney, Sherry L. Muncy, Assistant United States Attorney,
Clarksburg, West Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

             Johnie Lynn Haines pled guilty, pursuant to a written

plea     agreement,      to    one     count       of     aiding    and     abetting   the

distribution of crack cocaine.                She was sentenced in June 2003 to

three    years       probation.        The    district       court       revoked    Haines’

probation       in    March     2004    and     sentenced          her    to   24    months

imprisonment.         Haines’ attorney filed a brief in accordance with

Anders v. California, 386 U.S. 738 (1967), addressing whether there

are any meritorious issues for appeal.                     Counsel has also filed a

supplemental         brief    challenging      Haines’       sentence       under   United

States v. Booker, 125 S. Ct. 738 (2005).                    Although informed of her

right to file a pro se supplemental brief, Haines has not done so.

             This court has identified two types of Booker error:                         a

violation of the Sixth Amendment, and a failure to treat the

sentencing guidelines as advisory.                      United States v. Hughes, 401

F.3d 540, 552 (4th Cir. 2005).               A Sixth Amendment error occurs when

the district court imposes a sentence greater than the maximum

permitted based on facts found by a jury or admitted by the

defendant.       Booker, 125 S. Ct. at 756.                  Because Haines did not

raise a Sixth Amendment challenge or object to the mandatory

application of the guidelines in the district court, review is for

plain error.         Hughes, 401 F.3d at 547.            To demonstrate plain error,

an appellant must establish that an error occurred, that it was

plain,    and    that    it    affected      his    substantial          rights.    United


                                          - 2 -
States v. Olano, 507 U.S. 725, 731-32 (1993); Hughes, 401 F.3d at

547-48.      If an appellant meets these requirements, the court’s

“discretion is appropriately exercised only when failure to do so

would   result   in   a   miscarriage    of   justice,   such   as    when   the

defendant is actually innocent or the error seriously affects the

fairness, integrity or public reputation of judicial proceedings.”

Hughes, 401 F.3d at 555 (internal quotation marks and citation

omitted).     Because Haines’ sentence was not enhanced based on any

controverted fact, there was no Sixth Amendment violation.

             To the extent that she challenges the district court’s

application of the sentencing guidelines as mandatory, we also find

no error. To establish plain error, 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.” United States v. White, 405

F.3d 208, 224 (4th Cir. 2005).          In White, we determined that “the

record as whole provide[d] no nonspeculative basis for concluding

that the treatment of the guidelines as mandatory ‘affect[ed] the

district court’s selection of the sentence imposed,’” id. at 223

(quoting Williams v. United States, 503 U.S. 193, 203 (1992)).

Thus,   we    concluded    that   the    error   did   not   affect    White’s

substantial rights and affirmed the sentence. Id. at 225; see also

United States v. Collins, 412 F.3d 515, 524-25 (4th Cir. 2005)




                                    - 3 -
(finding that defendant failed to demonstrate prejudice from being

sentenced under mandatory sentencing guidelines).

           Likewise, the record provides no nonspeculative basis

suggesting that the district court would have sentenced Haines

differently had the guidelines been advisory instead of mandatory.

Indeed, the court had the discretion to modify or extend her period

of   probation    or    to   revoke    probation   and    impose    a    term   of

imprisonment.     The court chose the latter option after summarizing

Haines’ failure to comply with the terms of her probation.

           In accordance with Anders, we have reviewed the entire

record   and     have    found    no    meritorious      issues    for   appeal.

Accordingly, we affirm.          This court requires that counsel inform

his client, in writing, of her 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




                                       - 4 -
