                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 04-4247



UNITED STATES OF AMERICA,

                                             Plaintiff - Appellee,

          versus


MICKEY TAYLOR,

                                            Defendant - Appellant.


Appeal from the United States District Court for the District of
South Carolina, at Greenville. Henry M. Herlong, Jr., District
Judge. (CR-02-1051)


Submitted:   February 16, 2007            Decided:   April 16, 2007


Before MICHAEL, TRAXLER, and GREGORY, Circuit Judges.


Affirmed in part, vacated in part, and remanded by unpublished per
curiam opinion.


Steven W. Sumner, Greenville, South Carolina, for Appellant.
Reginald I. Lloyd, United States Attorney, Isaac L. Johnson, Jr.,
Assistant United States Attorney, Greenville, South Carolina, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

           Mickey     Taylor    appeals        his    conviction        and      360-month

sentence   imposed     following         his   guilty       plea   to   conspiracy        to

distribute five grams or more of actual methamphetamine and more

than fifty grams of a mixture containing a detectable amount of

methamphetamine and a quantity of methylenedioxy-methamphetamine

(“MDMA”), in violation of 21 U.S.C. §§ 841(a)(1), 846 (2000);

possession    with    intent    to       distribute     a    quantity       of   MDMA,    in

violation of 21 U.S.C. § 841(a)(1); and possession with intent to

distribute    five    grams    or    more      of    actual    methamphetamine,           in

violation of 21 U.S.C. § 841(a)(1).

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

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

meritorious grounds for appeal but questioning whether the district

court   erred   by    failing       to    inform     Taylor    of     the     nature     and

consequences of his guilty plea.                    In his pro se supplemental

briefs, Taylor raised numerous challenges to his sentence and

asserted that counsel was ineffective in failing to confront and

cross-examine confidential informants and in failing to appeal on

the basis of United States v. Booker, 543 U.S. 220 (2005).                         Because

we find that Sixth Amendment error occurred in Taylor’s sentencing,

we vacate his sentence and remand for resentencing in accordance

with Booker.




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                 Allegations of Rule 11 violations are reviewed for plain

error where, as here, Taylor did not move to withdraw his guilty

plea in the district court.                 United States v. Martinez, 277 F.3d

517,       527   (4th      Cir.   2002)    (stating    standard     of    review).         To

demonstrate plain error, Taylor must establish that error occurred,

that it was plain, and that it affected his substantial rights.

United States v. Hughes, 401 F.3d 540, 547-48 (4th Cir. 2005).                             If

a defendant establishes the first three plain error requirements,

see    id.       at    547-48,    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.”        Id.   at     555    (internal

quotation marks and citation omitted).                    Our review of the record

leads us to conclude that the district court substantially complied

with Rule 11 and Taylor is unable to establish that an error

occurred.         We find that his guilty plea was knowing and voluntary.

                 In determining the sentencing range under the Sentencing

Guidelines,1 the probation officer grouped the counts pursuant to

USSG § 3D1.2(d).            Taylor was held responsible for 1,729.4 grams of

methamphetamine            and    505   pills   of   MDMA,   which      converted     to   a

marijuana equivalency of 3,461.3 kilograms.                        This drug quantity




       1
        U.S. Sentencing Guidelines Manual (“USSG”) (2000).

                                            - 3 -
resulted in a base offense level of thirty-four2 pursuant to USSG

§ 2D1.1(c)(3). The probation officer also recommended a four-level

enhancement for Taylor’s leadership role in the conspiracy pursuant

to USSG § 3B1.1(a), and a three-level reduction for acceptance of

responsibility pursuant to USSG § 3E1.1, for a total offense level

of   thirty-five.     Taylor      was    also    determined       to    qualify    for

sentencing as a career offender pursuant to USSG § 4B1.1, which

assigned an offense level of thirty-four.                   Because the offense

level based on drug quantity and role in the offense was higher

than thirty-four, that offense level applied.                      Taylor’s prior

criminal activity yielded a total of seventeen criminal history

points, placing him in category VI.                  The applicable Guidelines

range was 292 to 365 months of imprisonment.

           Taylor    withdrew     his     objections        to   the    PSR   at   the

sentencing   hearing,       and   we    therefore      review     his    sentencing

arguments for plain error.              Hughes, 401 F.3d at 547.              Taylor

challenges   the    PSR’s    description        of    his   involvement       in   the

conspiracy that began in January 2000 because he was incarcerated

until October 2000.     He also asserts error in the quantity of drugs

attributed to him for sentencing, and the characterization of

methamphetamine as “actual” or “pure,” because laboratory analysis



      2
      The presentence report (PSR) contains a typographical error
in the offense level calculations, as the base offense level is
thirty-six rather than thirty-four. The error does not extend to
the calculation of Taylor’s total offense level.

                                       - 4 -
indicated the purity level of the substance did not exceed seventy-

four percent, and the Guidelines require a minimum of eighty

percent    purity    to    characterize    a    substance     as     actual

methamphetamine.     We conclude that these arguments are without

merit.    Taylor does not specify any drugs attributed to him based

on transactions that were alleged to have occurred during his

incarceration, but raises this issue more as an attack on the

credibility of the statements of co-conspirators who described his

drug transactions.    Because Taylor did not assert these objections

in the district court, however, there is no record beyond the PSR

for this court to consider in relation to his dispute with the drug

quantity attributed to him.

           Similarly, Taylor cannot demonstrate either error or

prejudice with regard to whether the methamphetamine was “actual”

methamphetamine.     First, Taylor pleaded guilty to an indictment

alleging a conspiracy and one transaction that involved “actual”

methamphetamine. He may therefore properly be held accountable for

that substance in the determination of his sentence.                 United

States v. Revels, 455 F.3d 448, 450 (4th Cir.), cert. denied, 127

S. Ct. 299 (2006). Moreover, the probation officer recognized that

the substances tested were not at least eighty percent purity, and

accordingly   used   a    lower   conversion   ratio   of   one    gram   of

methamphetamine equals two kilograms of marijuana to convert the

methamphetamine into marijuana equivalency.       The conversion ratio


                                   - 5 -
for methamphetamine “actual” in the Guidelines is one gram of

methamphetamine (actual) equals twenty kilograms of marijuana.

USSG § 2D1.1, comment. (n.10 Drug Equivalency Tables).     Taylor is

not entitled to relief on this claim.

            Acknowledging that his indictment charges him with actual

or pure methamphetamine, Taylor next attempts to argue that the

indictment and his plea agreement did not specify whether the drug

was d-methamphetamine or l-methamphetamine.       This claims fails

because the distinction between d- and l-methamphetamine has been

eliminated from the Sentencing Guidelines, and l-methamphetamine is

now treated the same as d-methamphetamine.    See USSG § 2D1.1 & App.

C at 430-33 (Amendment 518).     Thus, the characterization of the

type of methamphetamine did not affect the Guidelines calculation.

            Taylor was sentenced before Booker.      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.    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.      Hughes, 401

F.3d at 546. The Government concedes that the district court erred

in imposing the four-level enhancement for Taylor’s role in the

offense, and we conclude that the enhancement of his offense level

based on drug quantity also violated the Sixth Amendment.     Taylor

pleaded guilty to crimes that involved ten grams or more of actual


                                - 6 -
methamphetamine, more than fifty grams of methamphetamine mixture,

and an unspecified quantity of MDMA. These drug quantities support

a base offense level of twenty-six.   USSG § 2D1.1(c)(7).   However,

because Taylor had at least two prior felony convictions of either

a crime of violence or a controlled substance offense, and was at

least eighteen years old at the time the instant offenses were

committed, he was a career offender pursuant to USSG § 4B1.1.   See

United States v. Chase, 466 F.3d 310, 315-16 (4th Cir. 2006)

(rejecting challenge to career-offender status).   Taylor’s offense

level based solely on his career offender status was thirty-four.

USSG § 4B1.1(b).   An offense level of thirty-four and a criminal

history category of VI results in a Guidelines range of 262 to 327

months of imprisonment.   USSG, Ch. 5, Pt. A, Sentencing Table.

Because Taylor’s 360-month sentence exceeds this range, the Sixth

Amendment error affects Taylor’s substantial rights.     See United

States v. Evans, 416 F.3d 298, 300 n.4 (4th Cir. 2005) (holding

that to determine whether the defendant's sentence violated his or

her Sixth Amendment rights post-Booker, this court looks to the

defendant’s “guideline range based on the facts he admitted before

adjusting that range for acceptance of responsibility”).

          Taylor also argues that the district court erred in

adding three points to his criminal history score based on a 1985

juvenile conviction for which he received a term of imprisonment

exceeding one year and one month.   It is not necessary to determine


                              - 7 -
whether error occurred here, as Taylor’s substantial rights were

not affected.   Taylor’s criminal history points totaled seventeen;

thus, his criminal history category would have remained the same

without the inclusion of the disputed conviction. See USSG, Ch. 5,

Pt. A, Sentencing Table (criminal history category IV based on

thirteen or more points); see also USSG § 4B1.1(b) (stating that a

career offender’s criminal history category shall be category VI).

          Taylor asserts that counsel was ineffective for failure

to confront and cross-examine the confidential informants (who

Taylor claimed provided perjured testimony) and for failure to

appeal on the basis of Blakely/Booker.      To succeed in a claim of

ineffective assistance on direct appeal, a defendant must show

conclusively from the face of the record that counsel provided

ineffective representation.   United States v. James, 337 F.3d 387,

391 (4th Cir. 2003); see also United States v. Richardson, 195 F.3d

192, 198 (4th Cir. 1999) (providing standard and noting that

ineffective assistance of counsel claims generally should be raised

by motion under 28 U.S.C. § 2255 (2000)).    Our review of the record

convinces us that Taylor fails to meet this standard.

          In accordance with Anders, we have reviewed the entire

record in this case and have found no other meritorious issues for

appeal.   We therefore affirm Taylor’s convictions.     We conclude,




                               - 8 -
however, that Taylor’s sentence violates Booker.3         Accordingly, we

vacate   his   sentence   and   remand   for   resentencing.4   We   grant

Taylor’s motions to file supplemental pro se briefs but deny his

motion to relieve and substitute counsel.          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 IN PART,
                                           VACATED IN PART, AND REMANDED




     3
      Just as we noted in Hughes,“[w]e of course offer no criticism
of the district judge, who followed the law and procedure in effect
at the time” of Taylor’s sentencing. Hughes, 401 F.3d at 545 n. 4.
See generally Johnson v. United States, 520 U.S. 461, 468 (1997)
(stating that an error is “plain” if “the law at the time of trial
was settled and clearly contrary to the law at the time of
appeal”).
     4
      Although the Sentencing Guidelines are no longer mandatory,
Booker makes clear that a sentencing court must still “consult
[the] Guidelines and take them into account when sentencing.”
Booker, 543 U.S. at 264.    On remand, the district court should
first determine the appropriate sentencing range under the
Guidelines, making all factual findings appropriate for that
determination.   See Hughes, 401 F.3d at 546.    The court should
consider this sentencing range along with the other factors
described in 18 U.S.C.A. § 3553(a) (West 2000 & Supp. 2006), and
then impose a sentence. Id. If that sentence falls outside the
Guidelines range, the court should explain its reasons as required
by 18 U.S.C. § 3553(c)(2) (2000).     Id.   The sentence must be
“within the statutorily prescribed range . . . and . . .
reasonable.” Id. at 546-47 (citations omitted).

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