                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 04-5024



UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

          versus


MARK WILLIAM KING,

                                              Defendant - Appellant.


Appeal from the United States District Court for the Southern
District of West Virginia, at Huntington.  Robert C. Chambers,
District Judge. (CR-04-83)


Submitted:   September 16, 2005           Decided:   October 18, 2005


Before WILLIAMS, MICHAEL, and DUNCAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


W. Michael Frazier, FRAZIER & OXLEY, L.C., Huntington, West
Virginia, for Appellant.   Kasey Warner, United States Attorney,
Stephanie L. Haines, Assistant United States Attorney, Huntington,
West Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Mark William King appeals his conviction and 108-month

sentence    imposed        following    a   guilty   plea    to   conspiracy   to

distribute cocaine base, in violation of 21 U.S.C. § 846 (2000).

The district court found that King was responsible for not less

than five and not more than twenty grams of cocaine base, assigning

him a base offense level of twenty-six.              The court then found that

King possessed a weapon, and added two levels.               The court added two

additional levels for playing a leadership role.                     Finally, the

court     applied     a    three-level      adjustment      for   acceptance   of

responsibility, giving King an adjusted offense level of twenty-

seven.      Coupled       with   a   Criminal   History   Category    IV,   King’s

applicable guidelines range was 100-125 months.                      Taking into

account King’s considerable drug addiction, the court sentenced him

to 108 months’ imprisonment.            King now appeals.

            On appeal, King contends that in light of the Supreme

Court’s decision in United States v. Booker, 125 S. Ct. 738 (2005),

the district court erroneously enhanced his sentence based upon

facts not found by the jury, in violation of his Sixth Amendment

rights.    Because King preserved this issue by objecting to the PSR

based upon Blakely v. Washington, 542 U.S. 296 (2004), this court’s

review is de novo.         See United States v. Mackins, 315 F.3d 399, 405

(4th Cir. 2003) (“If a defendant has made a timely and sufficient




                                        - 2 -
Apprendi[1]     sentencing   objection   in    the   trial    court,   and   so

preserved his objection, we review de novo.”).               When a defendant

preserves a Sixth Amendment error, this court “must reverse unless

[it] find[s] this constitutional error harmless beyond a reasonable

doubt,   with    the   Government    bearing    the    burden     of   proving

harmlessness.”      Id. (citations omitted); see United States v.

White, 405 F.3d 208, 223 (4th Cir. 2005) (discussing difference in

burden of proving that error affected substantial rights under

harmless error standard in Fed. R. App. P. 52(a), and plain error

standard in Fed. R. App. P. 52(b)).

          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.

Id. 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.              Booker, 125 S.

Ct. at 756-67 (Breyer, J., opinion of the Court).




     1
      Apprendi v. New Jersey, 530 U.S. 466 (2000).

                                    - 3 -
              After   Booker,    courts     must    calculate   the   appropriate

guideline range, consider the range in conjunction with other

relevant factors under the guidelines and 18 U.S.C.A. § 3553(a)

(West 2000 & Supp. 2005), and impose a sentence.                      If a court

imposes a sentence outside the guideline range, the district court

must state its reasons for doing so.                 Hughes, 401 F.3d at 546.

This remedial scheme applies to any sentence imposed under the

mandatory guidelines, regardless of whether the sentence violates

the Sixth Amendment.       Id. at 547 (citing Booker, 125 S. Ct. at 769

(Breyer, J., opinion of the Court)).

              After careful review of the record, we conclude that King

suffered no Sixth Amendment violation.                First, we conclude that

King admitted the facts underlying the amount of cocaine base

attributable to him, and his two-level leadership role enhancement

as part of his guilty plea.           Accordingly, because these facts were

admitted,     the district court’s finding of a base offense level of

twenty-six and application of the two-level enhancement for a

leadership role does not constitute error.

              Second, even assuming that the application of a two-level

enhancement for use of a firearm was based upon facts found by the

judge   and    not    admitted   to    by   King,    the   application   of   this

enhancement did not violate King’s Sixth Amendment rights. Without

the firearm enhancement, King’s offense level would be reduced to

twenty-eight     before    considering       the    three-level   reduction    he


                                       - 4 -
received for acceptance of responsibility, making his applicable

sentencing range 110-137 months.        See United States v. Evans, 416

F.3d 298, 300 n.4 (4th Cir. 2005) (noting that, in determining

whether Sixth Amendment error occurred, the sentence imposed must

be compared to the permissible guideline range before adjusting for

acceptance of responsibility).      Because the district court imposed

a   108-month   sentence,   we   find   no   Sixth   Amendment   violation.2

Accordingly, we affirm King’s conviction and sentence.              We deny

both the Government’s motion to withdraw its brief and the parties’

joint motion to remand this appeal for resentencing.             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




      2
      As we find no constitutional violation in this case, we
reject   King’s   assertion   that   his   sentencing   under   an
unconstitutional statute violated the rule of lenity.          See
generally United States v. Lanier, 520 U.S. 259 (1997) (discussing
doctrine).

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