UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4423
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
GARY WESLEY HURT,
Defendant - Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Bluefield. David A. Faber, Chief
District Judge. (CR-03-290)
Submitted: August 3, 2005 Decided: September 19, 2005
Before WILKINSON, MOTZ, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Mary Lou Newberger, Federal Public Defender, Jonathan D. Byrne,
Appellate Counsel, Charleston, West Virginia, for Appellant. Kasey
Warner, United States Attorney, John L. File, Assistant United
States Attorney, Beckley, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Gary Wesley Hurt appeals his concurrent seventy-eight
month sentences, followed by a four-year term of supervised
release, resulting from his convictions for distribution of cocaine
base and distribution of five or more grams of cocaine base in
violation of 21 U.S.C. § 841(a)(1) (2000). For the reasons
discussed below, we affirm Hurt’s sentences.
Hurt, who pled guilty, does not challenge his convictions
on appeal. Hurt contends in regard to his sentencing that the
district court committed Sixth Amendment error under Blakely v.
Washington, 542 U.S. 296 (2004), by (1) enhancing his sentence
based on facts not found by a jury or admitted by him; and
(2) imposing a term of supervised release. After Hurt filed his
appellate brief, the Supreme Court issued United States v. Booker,
125 S. Ct. 738 (2005). We review issues raised for the first time
on appeal for plain error. See United States v. Hughes, 401 F.3d
540, 547 (4th Cir. 2005).
In Hughes, we held that when a sentence calculated under
the Sentencing Guidelines exceeds the maximum sentence authorized
by facts found by the jury alone or admitted by the defendant, the
defendant could demonstrate plain error that warranted resentencing
under Booker. We find the district court did not commit plain
error in sentencing Hurt because the seventy-eight month term of
imprisonment is not greater than that authorized by facts admitted
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by him. Hurt admitted to conduct involving 17.1 grams of crack
cocaine. Based on this quantity of drugs, Hurt’s base offense
level would have been 26. See USSG § 2D1.1(c)(7). Coupled with
Hurt’s criminal history category of II, the sentencing range
authorized by the facts to which Hurt admitted was 70-87 months in
prison. The sentence actually imposed on Hurt fell squarely within
this range. Accordingly, Hurt’s Sixth Amendment rights were not
infringed. As in United States v. Evans, 416 F.3d 298 (4th Cir.
2005), in reaching this conclusion, the district court’s adjustment
of Hurt’s offense level to account for acceptance of responsibility
is not factored into the determination of whether a Sixth Amendment
violation occurred. We also reject Hurt’s argument that the
district court did not have authority to impose a term of
supervised release. Booker did not invalidate 18 U.S.C. § 3583
(2000), which authorizes imposition of a term of supervised
release.
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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