UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4511
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
BRAD LAKENRICK CHAMBERS,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. Frank W. Bullock, Jr.,
District Judge. (CR-04-17)
Submitted: June 22, 2005 Decided: August 12, 2005
Before TRAXLER, GREGORY, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Louis C. Allen, III, Federal Public Defender, William C. Ingram,
Assistant Federal Public Defender, Greensboro, North Carolina, for
Appellant. Anna Mills Wagoner, United States Attorney, Lisa B.
Boggs, Assistant United States Attorney, Greensboro, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Brad Lakenrick Chambers pled guilty to the first two
counts of a four-count indictment. Count One alleged that Chambers
and others conspired and possessed with the intent to distribute in
excess of 500 grams of a mixture and substance containing a
detectable amount of cocaine hydrochloride in violation of 21
U.S.C. § 841(a)(1) and (b)(1)(B) (2000) and in violation of 21
U.S.C. § 846 (2000). Count Two alleged that on or about October
10, 2003, Chambers, during and in relation to a drug trafficking
crime (drug conspiracy), did knowingly carry a firearm in violation
of 18 U.S.C. § 924(c)(1)(A)(i) and (2) (2000).
Subsequent to his guilty plea, the Government filed a
motion pursuant to 18 U.S.C. § 3553(e) and the U.S. Sentencing
Guidelines Manual (“USSG”) § 5K1.1 (2003) requesting that Chambers
receive a twenty-five percent reduction in his sentence based on
his substantial assistance to Government agents. Following the
preparation of a presentence report by the probation officer, the
district court held a sentencing hearing on June 14, 2004. The
presentence report held Chambers responsible for three kilograms of
cocaine hydrochloride. The presentence report recommended a base
level offense of twenty-eight, that the total offense level after
a reduction for acceptance of responsibility be twenty-five, and a
criminal history category of II, based on a total of two criminal
history points.
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At sentencing, the court noted that the guideline range
for Chambers would ordinarily be a minimum of 123 months, but in
light of his cooperation, the court sentenced him to ninety months.
The court sentenced Chambers to thirty months’ imprisonment for
Count One and sixty months’ imprisonment for Count Two, to run
consecutively to the sentence imposed on Count One. Chambers
timely filed a notice of appeal.
Citing Blakely v. Washington, 124 S. Ct. 2531 (2004),
Chambers asserts that his sentence is unconstitutional.* Because
Chambers did not object to his sentence in the district court based
on Blakely or United States v. Booker, 125 S. Ct. 738 (2005), this
court’s review is for plain error. United States v. Hughes, 401
F.3d 540, 547 (4th Cir. 2005). To demonstrate plain error,
Chambers must establish that error occurred, that it was plain, and
that it affected his substantial rights. Id. at 547-48. If a
defendant establishes these requirements, 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).
Against this background, Chambers appeals his base level
offense of twenty-eight because the indictment alleged only 500
*
Chambers does not challenge his conviction on appeal.
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grams of cocaine hydrochloride. There is no Sixth Amendment
violation, however, when a district court relies on facts to which
the defendant agrees. See Blakely, 124 S. Ct. at 2537, quoted in
Booker, 125 S. Ct. at 749 ("the 'statutory maximum' for Apprendi
purposes is the maximum sentence a judge may impose solely on the
basis of the facts reflected in the jury verdict or admitted by the
defendant.") (emphasis in original). At the change of plea
hearing, Chambers agreed to the Government’s factual summary, which
included statements that Chambers and his co-conspirator (1) had
enough money for three kilos and (2) wanted to purchase five kilos
a week. At sentencing, counsel for Chambers stated that his client
had no factual objections to the presentence report, which
referenced the three kilogram amount. Thus, the first prong of the
plain-error test is not satisfied, because Chamber’s sentence was
not enhanced as a result of judicial findings that went beyond the
facts admitted by Chambers.
Chambers also challenges his criminal history category
under Blakely, asserting that the factual findings necessary to
apply the guidelines’ criminal history provisions make those
provisions very different from the simple finding of the fact of a
conviction. In Apprendi v. New Jersey, 530 U.S. 466 (2000), the
Supreme Court held “[o]ther than the fact of a prior conviction,
any fact that increases the penalty for a crime beyond the
prescribed statutory maximum must be submitted to a jury, and
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proved beyond a reasonable doubt.” Id. at 490. In Booker, the
Supreme Court reaffirmed its holding in Apprendi. See Booker, 125
S. Ct. at 756 (Stevens, J., opinion of the Court). The district
court’s assessment of criminal history points in this case was
based on the summary of the convictions in the presentence report,
to which Chambers did not object.
Accordingly, we 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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