UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4281
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
LISA PATRICE OLIVER,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. N. Carlton Tilley, Jr.,
Chief District Judge. (CR-03-310)
Submitted: October 31, 2005 Decided: November 21, 2005
Before WILKINSON, GREGORY, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Louis C. Allen, III, Federal Public Defender, Gregory Davis,
Assistant Federal Public Defender, Greensboro, North Carolina, for
Appellant. Angela Hewlett Miller, OFFICE OF THE UNITED STATES
ATTORNEY, Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Lisa Patrice Oliver pled guilty to possessing with intent
to distribute 226.7 grams of cocaine base. The district court
calculated Oliver’s sentence based on this amount of drugs using
the Federal Sentencing Guidelines and sentenced her within a
properly calculated Guideline range to 188 months of imprisonment.
On appeal, counsel has filed a brief under Anders v.
California, 386 U.S. 738 (1967), alleging that there are no
meritorious claims on appeal but raising the following issue:
whether the district court erred in determining the quantity of
drugs upon which Defendant’s offense level was calculated.
Thereafter, counsel filed a Fed. R. Crim. P. 28(j) motion
questioning whether Oliver’s sentence was correctly determined in
light of the Supreme Court’s opinion in Blakely v. Washington, 542
U.S. 296 (2004). Thereafter, the Supreme Court extended the
holding of Blakely to the Federal Sentencing Guidelines in United
States v. Booker, 125 S. Ct. 738 (2005). For the reasons that
follow, we affirm Oliver’s conviction and sentence.
In Booker the Supreme Court held that, when a defendant
is sentenced under the mandatory Guidelines scheme, “[a]ny fact
(other than a prior conviction) which is necessary to support a
sentence exceeding the maximum authorized by the facts established
by a plea of guilty or a jury verdict must be admitted by the
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defendant or proved to a jury beyond a reasonable doubt.” 125 S.
Ct. at 756.
This court has identified two types of Booker error: a
violation of the Sixth Amendment, and a failure to treat the
sentencing guidelines as advisory. United States v. Hughes, 401
F.3d 540, 552 (4th Cir. 2005). A Sixth Amendment error occurs when
the district court imposes a sentence greater than the maximum
permitted based on facts found by a jury or admitted by the
defendant. Booker, 125 S. Ct. at 756. Because Oliver did not
raise a Sixth Amendment challenge or object to the mandatory
application of the Guidelines in the district court, we review the
claim for plain error. Hughes, 401 F.3d at 547.
Here, because Oliver admitted to possessing with intent
to distribute 226.7 grams of crack, she has admitted to the drug
weight used to calculate her sentence using a base offense level of
34. See USSG § 2D1.1(c)(3). A base offense level of 34, combined
with her criminal history of IV, yields a sentencing range of 210
to 262 months of imprisonment. Thus, because Oliver’s 188-month
sentence does not exceed the maximum of this range, there was no
Sixth Amendment violation. See United States v. Evans, 416 F.3d
298, 300-01 (4th Cir. 2005) (holding that if sentence does not
exceed maximum authorized by facts admitted by defendant or found
by jury, there is no Sixth Amendment violation). Neither do we
find that there is a nonspeculative basis for remanding to the
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district court to determine whether Oliver was prejudiced by the
mandatory application of the Guidelines to her sentence. See
United States v. White, 405 F.3d 208, 223 (4th Cir. 2005), petition
for cert. filed, Oct. 13, 2005 (No. 05-6981).
We have examined the entire record in this case
(including the issues raised in Oliver’s pro se supplemental brief)
in accordance with the requirements of Anders, and find no
meritorious issues for appeal. Accordingly, we affirm. This court
requires that counsel inform his client, in writing, of her 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
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