                             UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                             No. 03-4976



UNITED STATES OF AMERICA,

                                                Plaintiff - Appellee,

           versus


HASSAN RICHARD MILLER, a/k/a Ernest Danielle
Smith,

                                               Defendant - Appellant.



Appeal from the United States District Court for the District of
South Carolina, at Rock Hill. Cameron McGowan Currie, District
Judge. (CR-97-726)


Argued:   December 2, 2005                 Decided:   February 1, 2006


Before TRAXLER, KING, and DUNCAN, Circuit Judges.


Vacated and remanded by unpublished per curiam opinion.


ARGUED: Jack Bruce Swerling, Columbia, South Carolina, for
Appellant.   Marshall Prince, Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Columbia, South Carolina, for
Appellee.   ON BRIEF: Jonathan S. Gasser, Acting United States
Attorney, Jimmie C. Ewing, OFFICE OF THE UNITED STATES ATTORNEY,
Columbia, South Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

        Hassan Richard Miller appeals his 262-month sentence for

distributing cocaine base in violation of 21 U.S.C. § 841(a)(1) and

18 U.S.C. § 2.        For the reasons that follow, we vacate the sentence

of the district court and remand for re-sentencing.



                                           I.

        On September 23, 1997, Miller was arrested with an accomplice

during a sale of crack cocaine to an undercover police officer in

Columbia, South Carolina.               He was indicted for possession with

intent to distribute “a quantity of cocaine base, commonly known as

‘crack’ cocaine,” in violation of 21 U.S.C. § 841(a)(1) and 18

U.S.C. § 2.           Miller was released to pretrial supervision, but

failed to appear for subsequent proceedings.                   He was located in

2002        while   serving   a    separate     federal    sentence    for   a   crime

committed in North Carolina.1

       Miller pleaded guilty to the South Carolina charges on May 7,

2003.       In his plea colloquy, he admitted that on or about September

23, 1997, he had met an undercover police officer and had shown him

“some crack cocaine” that the police had later seized from him.

Miller’s       Presentence        Investigation    Report    (“PSR”)   contained     a

recommended total offense level of 36.                    This recommendation was



        1
      We refer to Miller’s federal sentence for the crime committed
in North Carolina as his North Carolina sentence.

                                         - 2 -
calculated by beginning with U.S.S.G. § 2D1.1(c)(3)’s base offense

level of 34, based upon the 241.64 grams of crack cocaine that the

police claimed to have recovered from Miller and his accomplice.

Two enhancements were added to Miller’s base offense level: (1) a

three-point aggravated assault enhancement under former U.S.S.G. §

3A1.2(b)2 for throwing a juice bottle at a police officer while

fleeing   arrest   and   (2)   a   two-point   obstruction   of    justice

enhancement under U.S.S.G. § 3C1.1 for absconding from pretrial

supervision.   The PSR further contained a recommendation that the

court grant Miller a three-point offense-level reduction under

U.S.S.G. § 3E1.1 for acceptance of responsibility for his crime.

Finally, the PSR contained a recommended criminal history score of

seven, corresponding to criminal history category four.3

     At   sentencing,    the   district    court   adopted   the    PSR’s

recommended offense level of 36 and criminal history category four.

Miller objected to the aggravated assault enhancement, denying the


     2
      Former Section 3A1.2(b) of the sentencing guidelines is
currently codified as amended at U.S.S.G. § 3A1.2(c). We cite to
former U.S.S.G. § 3A1.2(b) to reference the earlier version of the
aggravated assault enhancement, not the text currently codified in
that subsection.
     3
      Pursuant to U.S.S.G. § 4A1.1(a), a 1999 conviction for
conspiracy to distribute cocaine base (the crime for which Miller’s
North Carolina sentence was imposed) accounted for the first three
points of Miller’s recommended criminal history score.       Miller
received four additional points under U.S.S.G. § 4A1.1(c), one
point each for a 1992 conviction for driving with a revoked
license, a 1992 conviction for possession of marijuana, a 1993
conviction for possession of marijuana and driving with a revoked
license, and a 1994 conviction for possession of marijuana.

                                   - 3 -
conduct at issue and arguing that, even if the allegations were

true,    they    would   not   satisfy   the       requirements   of    U.S.S.G.   §

3A1.2(b).4      He did not object to the aggravated assault enhancement

on the grounds that it violated his Sixth Amendment right to a jury

trial, nor did he object on any basis to the remaining sentencing

enhancements for drug quantity, obstruction of justice, and prior

convictions.

     The     district    court    imposed      a    sentence     of    262   months’

imprisonment, of which 120 months would run concurrently with the

North    Carolina    sentence.5      The    sentence      thus    equated     to   an

effective 142 months of imprisonment in addition to the North

Carolina sentence that Miller was already serving.




     4
      Miller also objected to the assessment of a criminal history
point for his 1992 marijuana possession conviction and to the
assessment of three criminal history points for his 1999 conspiracy
conviction.   He appealed the district court’s rulings on those
objections, but notified this court at oral argument that he wished
to abandon those arguments. We therefore do not address them.
     5
      We note that at sentencing the district court declared that
it wished for Miller to serve only “60 months consecutive.”
However, it then ordered 142 months of the 262-month sentence to be
served consecutively to Miller’s North Carolina sentence.       The
court therefore apparently did not mean that Miller should serve
only 60 additional months after completing his North Carolina
sentence. Rather, the district court intended for 60 months of
Miller’s 180-month North Carolina sentence not to be served
concurrently with his new sentence in this case.      The district
court’s determination that Miller should serve 120 months of the
180-month North Carolina sentence concurrently with his new
sentence satisfies us that we have properly interpreted the court’s
intention in this regard.

                                     - 4 -
     For the first time on appeal, Miller now argues that the

district court contravened United States v. Booker, 125 S. Ct. 220

(2005), by enhancing his sentence beyond the statutory maximum

available based only on Sixth Amendment-compliant findings of fact.

Specifically,   Miller   challenges    the   court’s   findings   that   he

possessed a specific quantity of drugs, that he committed an

aggravated assault on a police officer, and that he obstructed

justice.   In addition to his Sixth Amendment challenge, Miller

disputes the district court’s findings of fact with respect to his

aggravated assault enhancement, arguing that the evidence was

insufficient to support the court’s finding that he had thrown a

juice bottle at a police officer.        He further alleges that the

district court improperly interpreted former U.S.S.G. § 3A1.2(b) to

include the conduct that the court attributed to Miller.



                                 II.

     We first address Miller’s Sixth Amendment challenge to the

drug quantity enhancement.     Because he did not raise this issue

below, this court reviews his objection for plain error.                 See

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

Fed. R. Crim. P. 52(b)).    Plain error exists if the district court

committed (1) an error that (2) is plain, (3) prejudiced Miller’s

substantial rights, and (4) absent reversal “would result in a

miscarriage of justice, such as when . . . the error seriously


                                - 5 -
affects the fairness, integrity or public reputation of judicial

proceedings.”         See Hughes, 401 F.3d at 547-48, 555 (citations

omitted).



                                      A.

      Following our framework for plain error review, we first

consider whether the district court committed an error.                We have

previously held that Booker error satisfies this first prong of the

plain error standard of review.       Hughes, 401 F.3d at 547.         A Booker

error has infected Miller’s sentence if the sentence exceeded the

applicable statutory maximum based solely upon the facts “admitted

by the defendant,” the facts “proved to a jury beyond a reasonable

doubt,” or the facts of a prior conviction.           See Booker, 125 S. Ct.

at 756.

      At the time of Miller’s sentencing, the then-mandatory federal

sentencing guidelines prescribed a sentencing range applicable to

his   conduct   and     criminal   history,   the    upper    limit   of   which

constituted     the    statutory   maximum    to    which    Miller   could   be

sentenced absent a valid upward departure.                   To determine the

applicable sentencing range, the district court applied offense

level 36 and criminal history category four.           Miller’s sentence of

262 months’ imprisonment was based on the sentencing range of 262

to 327 months’ imprisonment that corresponded to that offense level




                                    - 6 -
and criminal history category.      See U.S. Sentencing Guidelines

Table, ch. 5, pt. A, 18 U.S.C. (2000).

     We conclude that the district court’s finding that Miller was

responsible for 241.64 grams of cocaine base was, by itself,

sufficient to increase his sentence beyond the statutory maximum

that would have applied absent that finding.6    Applying all of the

district court’s sentencing enhancements except for the enhancement

for drug quantity, the Sentencing Table produces total offense

level seventeen and criminal history category four.7   See id.   This

application of the guidelines corresponds to a recommended range of

37 to 46 months’ imprisonment.    See id.   Miller’s actual sentence

of 262 months thus far surpasses the maximum statutorily authorized

sentence absent the drug quantity enhancement.

     We further note that the drug quantity enhancement is not

immune from the Sixth Amendment’s requirements because a jury did


     6
      This circuit has considered all allegedly erroneous
sentencing enhancements cumulatively when determining whether those
enhancements violate the Sixth Amendment, see, e.g., Hughes, 401
F.3d at 547, rather than requiring each error to state a violation
standing on its own. However, because we find that Miller’s drug
quantity enhancement by itself warrants re-sentencing, we do not
address his additional sentencing enhancements. Therefore, for the
purpose of determining the total offense level and criminal history
category that would have applied to Miller absent the drug quantity
enhancement, we assume without deciding that these additional
challenged sentencing enhancements were valid.
     7
      In analyzing Miller’s Booker claim, we do not factor his
three-level deduction under Section 3E1.1 into our calculation of
the offense level that would have applied to him absent the drug
quantity enhancement. See United States v. Evans, 416 F.3d 298,
300 n.4 (4th Cir. 2005).

                                 - 7 -
not find, nor did Miller admit, that he was responsible for 241.64

grams of crack cocaine, and because the drug quantity is not a fact

of a prior conviction.   First, because Miller pleaded guilty, no

jury ever made any findings of fact with respect to his conduct.

Second, at his plea colloquy, Miller admitted only that he offered

to sell an undercover officer “some crack cocaine.”       Miller’s

admission thus did not establish a minimum quantity of the drug for

which he was responsible.   Rather, his admission established only

that he distributed, in violation of 21 U.S.C. § 841(a)(1) and 18

U.S.C. § 2, an amount of crack cocaine greater than zero grams.

Such a statement is insufficient to constitute an admission that

Miller was responsible for 241.64 grams of the drug.   Finally, the

district court referred to no prior convictions to establish the

drug quantity applicable to this case.

     Because Miller’s sentence was enhanced beyond the statutory

maximum based on a drug quantity not found by a jury beyond a

reasonable doubt or admitted by him, and because that drug quantity

is not a fact of a prior conviction, the sentence violated the

Sixth Amendment.8 This violation constitutes error under the first

prong of the plain error standard.




     8
      As we noted in United States v. Hughes, 401 F.3d 540, 545 n.4
(4th Cir. 2005), “[w]e of course offer no criticism of the district
judge, who followed the law and procedure in effect at the time of
[the defendant’s] sentencing.”

                               - 8 -
                                       B.

      We   now    consider   whether   Miller’s    challenge    to   the   drug

quantity enhancement satisfies the second, third, and fourth prongs

of the plain error standard.        We begin by noting that this circuit

has already decided that allegations of Booker Sixth Amendment

error raised for the first time on appeal state plain error that,

if prejudicial, warrants re-sentencing.           Hughes, 401 F.3d at 555-

56.   Because Miller has alleged a cognizable Booker error, he has

demonstrated that the error is plain (prong 2) and that it warrants

exercise of the court’s discretion to reverse his sentence (prong

4).   See id.

      We further find that Miller’s objection to the drug quantity

enhancement alleges an error that was prejudicial, satisfying the

third prong of the plain error standard.          We note that the district

court ordered 120 months of Miller’s 262-month sentence to run

concurrently with his North Carolina sentence, reducing Miller’s

sentence in this case to an effective 142 months.            However, we need

not decide here whether the concurrent portion of his sentence is

relevant to our prejudice analysis on plain error review. Miller’s

sentence would be prejudicial under Hughes even without counting

the portion served concurrently with his North Carolina sentence.

As we have noted, his sentencing range without the drug quantity

enhancement would have been 37 to 46 months, well below the 142

months     that   were   imposed   consecutive    to   his   North   Carolina


                                    - 9 -
sentence.      Our opinion in Hughes makes clear that our prejudice

analysis must at a minimum include any additional time in prison

that a defendant receives from the sentence under review.                  See

Hughes, 401 F.3d at 548-52.              We therefore hold that Miller’s

sentence demonstrates prejudice under the third prong of the plain

error standard.



                                      III.

        The Sixth Amendment error with respect to the drug quantity

enhancement warrants re-sentencing; review of Miller’s remaining

sentencing objections would not result in any modification of that

relief.       We   therefore   decline    to   reach   his   remaining   Booker

objections concerning enhancements for obstruction of justice and

aggravated assault of a police officer.             For the same reason, we

will not review Miller’s statutory objections to the aggravated

assault enhancement.



                                      IV.

     We find that the drug quantity enhancement increased Miller’s

sentence beyond the statutory maximum authorized by the facts to

which    he   admitted   and   the   facts     of   his   prior   convictions.

Accordingly, the judgment of the district court is

                                                       VACATED AND REMANDED.




                                     - 10 -
