UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4534
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
WILLIAM BRYAN MILLER, JR.,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Louise W. Flanagan,
District Judge. (CR-03-109-FL)
Submitted: September 7, 2005 Decided: September 28, 2005
Before LUTTIG, GREGORY, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant. Anne M. Hayes, Assistant United States Attorney,
Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
William Bryan Miller, Jr., pled guilty pursuant to a plea
agreement to one count of passing counterfeit currency and aiding
and abetting such conduct, in violation of 18 U.S.C. §§ 2, 472
(2000). At sentencing, the Government moved for a downward
departure from the sentencing guidelines because Miller provided
substantial assistance. Miller was sentenced to two months’
incarceration and two years’ supervised release of which no more
than 120 days could be home confinement. Miller’s counsel filed a
brief under Anders v. California, 386 U.S. 738 (1976), claiming
there were no meritorious issues, but preserving the issue of
whether the district court’s decision to increase the offense level
by one based upon a fact not found by the jury or admitted by
Miller as a result of his guilty plea violated the Sixth Amendment.
See United States v. Booker, 543 U.S. ___, 125 S. Ct. 738 (2005).
Miller has declined the opportunity to file a pro se supplemental
brief. The Government has chosen not to file a brief. We affirm.
Miller’s counsel concedes the validity of Miller’s appeal
waiver contained in the plea agreement. Miller waived “all rights
conferred by 18 U.S.C. § 3742, to appeal whatever sentence is
imposed, including any issues that relate to the establishment of
the Guideline range, reserving only the right to appeal from an
upward departure for the Guideline range that is established at
sentencing.” (J.A. at 12). Because Miller’s counsel concedes that
- 2 -
such waivers are enforceable and there is no dispute as to Miller’s
competence to voluntarily and knowingly enter into the plea
agreement, we find the waiver forecloses review of Miller’s
sentence.*
With respect to the fact that Miller’s offense level was
increased by one because of the amount of loss, we find there was
no error. Miller agreed to the amount of loss in the plea
agreement. He did not object to the factual basis for the
enhancement at sentencing. Accordingly, the district court did not
have to engage in fact finding before confirming the one-point
enhancement.
We further find because Miller was sentenced to a term of
imprisonment less than the maximum sentence authorized by the facts
to which Miller admitted as a result of his guilty plea, there was
no Sixth Amendment violation. United States v. Evans, 416 F.3d
298, 300 (4th Cir. 2005). In addition, because the record provides
no nonspeculative basis suggesting that the court would have
sentenced Miller to a lower sentence had the court sentenced under
an advisory guideline scheme, the mandatory application of the
sentencing guidelines did not affect his substantial rights.
United States v. White, 405 F.3d 208, 216-24 (4th Cir. 2005).
*
Miller’s sentence was not above the statutory maximum or
influenced by an upward departure.
- 3 -
Accordingly, we affirm the judgment of the district
court. In accordance with Anders, we have reviewed the entire
record and have found no meritorious issues for appeal. This court
requires that counsel inform his client, in writing, of his right
to petition the Supreme Court of the United States for further
review. If the client requests that a petition be filed, but
counsel believes that such a petition would be frivolous, then
counsel may move in this court for leave to withdraw from
representation. Counsel’s motion must state that a copy thereof
was served on the client. 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
- 4 -