                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 04-4806



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

          versus


DENINE MOSES, a/k/a BF,

                                              Defendant - Appellant.


Appeal from the United States District Court for the Northern
District of West Virginia, at Clarksburg. Irene M. Keeley, Chief
District Judge. (CR-03-54)


Submitted:   May 31, 2005                  Decided:   July 25, 2005


Before WILLIAMS, MICHAEL, and TRAXLER, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Joan A. Mooney, Morgantown, West Virginia, for Appellant. Thomas
E. Johnston, United States Attorney, Shawn Angus Morgan, 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Unpublished opinions are not binding precedent in this circuit.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:

           Denine Moses appeals his conviction pursuant to his

guilty plea to aiding and betting the distribution of heroin within

one thousand feet of a playground in violation of 21 U.S.C.

§§ 841(a)(1), 841(b)(1)(C), 860 and 18 U.S.C. § 2 (2000).        He

asserts the district court erred by denying his motion to withdraw

his guilty plea. Moses also asserts the district court erred under

United States v. Booker, 125 S. Ct. 738 (2005), by imposing a two-

level enhancement pursuant to U. S. Sentencing Guidelines Manual

§ 2D1.1(b)(1) for possession of a firearm in connection with a drug

offense.

           At the sentencing hearing, Moses claimed he was not

guilty as to the count to which he pled guilty.   The district court

judge found Moses’ testimony concerning whether his plea was

knowing and voluntary not credible and denied Moses’ motion to

withdraw his guilty plea.     After a recess, Moses recanted his

previous testimony, admitted to engaging in the charged conduct,

and sought to withdraw the motion to withdraw his guilty plea that

the court just denied.   The district court reconsidered the motion

and permitted Moses to withdraw it.

           We conclude that because Moses was permitted to withdraw

his motion to withdraw his guilty plea, he has waived any issue

concerning the court’s denial of the motion to withdraw his guilty

plea.   See United States v. Olano, 507 U.S. 725, 733 (1993); United


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States v. Davis, 121 F.3d 335, 338 (7th Cir. 1997); U.S. v.

Rodriguez, 311 F.3d 435, 437 (1st Cir. 2002); United States v.

Griffin, 84 F.3d 912, 924 (7th Cir. 1996).

           Next, Moses argues the district court erred under Booker

and   Blakely    by   imposing   a   two-level   enhancement   under   USSG

§ 2D1.1(b)(1) for possession of a firearm in connection with a drug

offense. In Booker, the Supreme Court held that Blakely applies to

the federal sentencing guidelines and that the mandatory guidelines

scheme that provided for sentence enhancements based on facts found

by the court violated the Sixth Amendment.         Booker, 125 S. Ct. at

746-48, 755-56 (Stevens, J., opinion of the Court).             The Court

remedied the constitutional violation by severing and excising the

statutory provisions that mandate sentencing and appellate review

under the guidelines, thus making the guidelines advisory.         Id. at

756-57 (Breyer, J., opinion of the Court).

           Here, the district court imposed a 380-month sentence

based, in part, on a two-level enhancement using facts found by the

court. Under Booker, the sentence violated the Sixth Amendment.

However, the alternative sentence imposed by the district court

treating the guidelines as advisory did not violate the Sixth

Amendment.      Booker, 125 S. Ct. at 769.

           Booker states that, in reviewing sentences that do not

involve a Sixth Amendment violation, appellate courts may apply the

harmless error doctrine in determining whether resentencing is


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required.    Booker, 125 S. Ct. at 769; see Fed. R. Crim. P. 52(a)

(appellate court may disregard any error that does not affect

substantial rights).     The harmless error standard permits an error

at sentencing to be disregarded if the reviewing court is certain

that any such error “did not affect the district court’s selection

of the sentence imposed.” Williams v. United States, 503 U.S. 193,

203   (1992).    Here,    because    the    district   court   imposed   an

alternative discretionary sentence pursuant to 18 U.S.C. § 3553

(2000) that was identical to the guidelines sentence, the error

inherent in the application of the guidelines as mandatory did not

affect the court’s ultimate determination of the sentence.               Cf.

United States v. Hazelwood, 398 F.3d 792, 801 (6th Cir. 2005)

(finding error not harmless and remanding where court’s comments

indicated it might have imposed a lesser sentence under advisory

guidelines scheme).      We therefore conclude that any error was

harmless.

            Finally, this Court reviews a sentence imposed pursuant

to § 3553 to determine whether it is reasonable.          Booker, 125 S.

Ct. at 764-67 (Breyer, J., opinion of the Court)).         In the instant

case, the district court made use of the sentencing guidelines and

the other factors under § 3553.         The district court judge noted

Moses’ extensive criminal history and behavior, both good and bad,

in the courtroom.      We conclude that because the district court

considered the factors under § 3553 and imposed a sentence within


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the   calculated   sentencing   guideline   range,   the   sentence   was

reasonable.

           Accordingly, we deny Moses’ motion to relieve appellate

counsel, and we affirm Moses’ conviction and sentence. 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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