                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 05-4052



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

          versus


RAMONE BERRY,

                                              Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Graham C. Mullen, Chief
District Judge. (CR-03-134-MU)


Submitted:   November 21, 2005         Decided:     December 19, 2005


Before NIEMEYER, LUTTIG, and MOTZ, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Randolph M. Lee, Charlotte, North Carolina, for Appellant. Karen
S. Marston, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North
Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

          Ramone    Berry    appeals   his    conviction     and   120-month

sentence imposed following his guilty plea to conspiracy to possess

with intent to distribute cocaine and cocaine base.                  For the

reasons discussed below, we affirm.

          Berry’s counsel filed a brief pursuant to Anders v.

California,   386   U.S.    738   (1967),   stating   that   there   are   no

meritorious grounds for appeal but suggesting the district court

erred in subjecting Berry to an enhanced sentence based on his

prior felony drug conviction, in light of United States v. Booker,

125 S. Ct. 738 (2005).       Although notified of his right to do so,

Berry has not filed a pro se supplemental brief.

          Before turning to the argument suggested by counsel, we

note that our review of the record reveals that the district court

may have failed to comply with the requirements of 21 U.S.C.

§ 851(b) (2000) in subjecting Berry to an enhanced sentence based

on his prior felony drug conviction.           Because Berry failed to

challenge the § 851 enhancement on this ground in the district

court, we review for plain error.           See Fed. R. Crim. P. 52(b);

United States v. Olano, 507 U.S. 725, 731-32 (1993).

          In United States v. Ellis, 326 F.3d 593 (4th Cir.), cert.

denied, 540 U.S. 907 (2003), the defendant challenged the district

court’s failure to conduct a § 851(b) colloquy.              The government

notified the defendant that it was seeking an enhanced sentence


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based on prior convictions.             Id. at 596.     The presentence report

also advised the defendant of the aggravating effect of the prior

convictions.         The defendant did not object to that portion of the

presentence report and acknowledged the aggravating effect of the

prior convictions at the sentencing hearing.                  Id. at 599.         We

concluded that the district court’s failure to comply with the

notification         requirement   of    §   851(b)   was   plain   error.       Id.

Nonetheless, we held that, because the defendant apparently was on

notice of the enhancement and failed to object to it, the error did

not affect his substantial rights.                  Id. (applying plain error

analysis).

               Similarly, in this case, Berry received § 851 notice that

adequately notified him of the prior felony drug offense upon which

the government sought to enhance his sentence.                   The prior felony

drug       offense   was   included     in   the   presentence    report    in   the

discussion of Berry’s criminal history, yet Berry made no objection

to the validity of this conviction.*               The presentence report also

clearly explained the impact of the prior felony drug offense on

Berry’s sentence. Finally, the court made clear at sentencing that

Berry faced a statutory mandatory minimum sentence and gave Berry

an opportunity to speak before pronouncing sentence.                       Even so,


       *
      Although Berry initially argued that the conviction did not
constitute a felony under North Carolina law, he later withdrew
this objection after the Supreme Court of North Carolina issued a
decision rejecting this precise argument. See State v. Jones, 598
S.E.2d 125, 127-33 (N.C. 2004).

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Berry did not object to the use of his prior conviction to enhance

his sentence.         Because Berry “could not plausibly argue that he

would have done anything different had the district court [complied

with § 851(b)],” id. (internal quotation marks omitted), we find

that the court’s failure to comply with the § 851(b) requirements

did not affect Berry’s substantial rights.

             In the Anders brief, counsel argues that the application

of the § 851 enhancement in Berry’s case may violate his Sixth

Amendment rights under Booker.               In Booker, the Supreme Court held

that   the       mandatory   manner     in    which   the   federal    sentencing

guidelines required courts to impose sentencing enhancements based

on facts found by the court, by a preponderance of the evidence,

violated the Sixth Amendment.            125 S. Ct. at 746, 750 (Stevens, J.,

opinion of the Court).            The Court remedied the constitutional

violation        by   severing   two    statutory     provisions,     18   U.S.C.A.

§ 3553(b)(1) (West Supp. 2005) (requiring sentencing courts to

impose a sentence within the applicable guideline range), and 18

U.S.C.A.     §    3742(e)    (West     2000   &   Supp.   2005)   (setting   forth

appellate standards of review for guideline issues), thereby making

the guidelines advisory. Id. at 756-57 (Breyer, J., opinion of the

Court).      Berry’s sentence did not violate Booker because he was

sentenced to the statutory minimum for his offense. As we recently

made clear in United States v. Robinson, 404 F.3d 850, 862 (4th

Cir.), cert. denied, 126 S. Ct. 288 (2005), “Booker did nothing to


                                        - 4 -
alter the rule that judges cannot depart below a statutorily

provided minimum sentence.”

           In accordance with the requirements of Anders, we have

reviewed   the   entire   record   in   this   case   and   have   found   no

meritorious issues for appeal.          Accordingly, we affirm Berry’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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