                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 02-4877



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

          versus


ERIC MARTIN VAN BUREN,

                                              Defendant - Appellant.


     On Remand from the Supreme Court of the United States.
                      (S. Ct. No. 04-5830)


Submitted:   May 31, 2006                  Decided:   July 14, 2006


Before WILKINS, Chief Judge, and NIEMEYER and TRAXLER, Circuit
Judges.


Affirmed by unpublished per curiam opinion.


David L. Heilberg, MARTIN & RAYNOR, P.C., Charlottesville,
Virginia; Peter R. Roane, Charlottesville, Virginia, for Appellant.
John L. Brownlee, United States Attorney, Ray B. Fitzgerald, Jr.,
Assistant United States Attorney, Charlottesville, Virginia, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Eric Martin Van Buren appealed the district court’s

judgment entered pursuant to his conviction for conspiracy to

possess with intent to distribute more than fifty grams of cocaine

base in violation of 21 U.S.C. §§ 841(a)(1), 846 (2000).             We

affirmed.     Thereafter, the Supreme Court vacated our decision and

remanded for further consideration in light of its decision in

United States v. Booker, 543 U.S. 220 (2005).        After conducting

this review, we again affirm.

            Van Buren contends that the district court improperly

sentenced him when it imposed a sentence greater than the maximum

authorized by the facts found by the jury alone in violation of

Booker.   Because he failed to raise this claim below, we review it

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

Cir. 2005).    To meet the plain error standard:    (1) there must be

an error; (2) the error must be plain; and (3) the error must

affect substantial rights.      United States v. Olano, 507 U.S. 725,

732-34 (1993).     If the three elements of the plain error standard

are met, the court may exercise its discretion to notice error only

if the error seriously affects “the fairness, integrity, or public

reputation    of   judicial   proceedings.”   Id.   at   736   (citation

omitted).

            The jury convicted Van Buren pursuant to an indictment

charging involvement with fifty or more grams of cocaine base.        At


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sentencing, the district court held Van Buren accountable for 205

kilograms of cocaine base for a base offense level of thirty-eight

under U.S. Sentencing Guideline Manual § 2D1.1(c)(1) (2004).             The

district court added two offense levels each for possession of a

firearm during the course of the drug conspiracy, organizing the

conspiracy, and obstruction of justice under USSG §§ 2D1.1(b)(1),

3B1.1(c), and 3C1.1. The district court assigned Van Buren a total

offense level of forty-four and a criminal history category of III,

resulting in a guideline range of life imprisonment.           The district

court sentenced Van Buren to life imprisonment.

              The Presentence Investigative Report (PSR) recommended a

drug quantity of 205 kilograms of cocaine base, far in excess of

the 1.5 kilograms required for a base offense level of thirty-eight

under USSG § 2D1.1(c)(1).         Van Buren’s counsel did not object to

the PSR, nor did he object to the quantity at sentencing.                Van

Buren filed a pro se objection to the 205 kilogram drug quantity,

arguing that the testimony at trial did not support such a finding.

According to Van Buren, the largest quantity of crack that could

have been attributed to him based on the evidence at trial was no

more   than    181   kilograms.      By   arguing   for   a   drug   quantity

substantially higher than 1.5 kilograms, it is arguable that

Van Buren implicitly admitted the facts necessary for a base

offense level of thirty-eight and no reversible Booker error

existed.


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           Even if Van Buren did not admit a higher drug quantity,

the evidence of drug quantity was overwhelming and essentially

uncontroverted.     In United States v. Cotton, 535 U.S. 625 (2002),

the Supreme Court held that when the evidence of the necessary drug

quantity was overwhelming and essentially uncontroverted, there was

no basis to conclude the error seriously affected the fairness,

integrity, or public reputation of judicial proceedings on plain

error review.     Id. at 633; United States v. Smith, 441 F.3d 254,

272 (4th Cir. 2006).    At trial, Richard Shirley testified that Van

Buren supplied him with large quantities of cocaine base to sell,

usually between one-half kilogram and one kilogram, on a weekly

basis for nearly three years. Roy Samuels testified that Van Buren

provided him with cocaine base on a regular basis for approximately

one year; Samuels estimated that Van Buren supplied him with a

total of four or five kilograms over the course of that year.

Another   cocaine   base   dealer,   Paul   Brown,   testified   that   he

generally received from Van Buren one-half kilogram of cocaine base

every three to four days over a two-year period.         This testimony

was only part of the overwhelming and essentially uncontroverted

evidence that put Van Buren far in excess of the 1.5 kilograms of

cocaine base necessary to trigger the application of a base offense

level of thirty-eight.     Accordingly, we decline to find that the

district court committed reversible error under Booker when it

sentenced Van Buren using a drug quantity of over 1.5 kilograms.


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             The PSR also recommended a two offense level enhancement

under USSG § 3B1.1(c) for a leadership role in the conspiracy.

Numerous witnesses testified that Van Buren obtained the cocaine

base for sale and recruited others, including his brother, to sell

the drugs on the street.       The evidence of his leadership role was

also overwhelming and essentially uncontroverted.            There was no

basis   to    conclude   the   district     court’s   application   of   the

leadership    role    enhancement   seriously    affected   the   fairness,

integrity, or public reputation of judicial proceedings on plain

error review.        See Cotton, 535 U.S. at 633; Johnson v. United

States, 520 U.S. 461, 468-70 (1997); and Smith, 441 F.3d at 272.

The district court did not commit reversible error under Booker

when it sentenced Van Buren using an enhancement for his leadership

role.

             The PSR recommended a two offense level enhancement under

USSG § 2D1.1(b)(1) because Van Buren carried a firearm during the

course of the conspiracy and a two offense level enhancement under

USSG § 3C1.1 for obstruction of justice for perjurious testimony

and providing law enforcement false information.            Even assuming

these enhancements were, viewed in isolation, improper, we find no

reversible error.        Without those offense level increases, Van

Buren’s total offense level would be forty. He had a criminal

history category of III, resulting in a guideline range of 360

months to life imprisonment. Because Van Buren’s life imprisonment


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sentence     could    have    been   imposed    even      absent   the    improper

enhancements,        such    enhancements     did   not    violate    the    Sixth

Amendment.    See United States v. Evans, 416 F.3d 298, 300-01 (4th

Cir. 2005).

           The       district    court’s    treatment      of   the      sentencing

guidelines as mandatory also does not require resentencing.                   While

the district court erred in treating the guidelines as mandatory,

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

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.          United States v. White, 405 F.3d 208,

224 (4th Cir. 2005).            Van Buren cannot satisfy the prejudice

requirement of the plain error standard.               Nothing in the record

suggests the error in applying the guidelines as mandatory affected

the court’s ultimate determination of Van Buren’s sentence or

affected Van Buren’s substantial rights.

           Accordingly, we grant Van Buren’s motion to file a pro se

supplemental brief, deny his motion to remand, and affirm the

judgment of the district court.             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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