UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4261
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JOHNIE LYNN HAINES,
Defendant - Appellant.
Appeal from the United States District Court for the Northern
District of West Virginia, at Elkins. Robert E. Maxwell, Senior
District Judge. (CR-01-18)
Submitted: October 26, 2005 Decided: January 4, 2006
Before LUTTIG, KING, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Barron M. Helgoe, VICTOR, VICTOR & HELGOE, L.L.P., Charleston, West
Virginia, for Appellant. Thomas E. Johnston, United States
Attorney, Sherry L. Muncy, Assistant United States Attorney,
Clarksburg, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Johnie Lynn Haines pled guilty, pursuant to a written
plea agreement, to one count of aiding and abetting the
distribution of crack cocaine. She was sentenced in June 2003 to
three years probation. The district court revoked Haines’
probation in March 2004 and sentenced her to 24 months
imprisonment. Haines’ attorney filed a brief in accordance with
Anders v. California, 386 U.S. 738 (1967), addressing whether there
are any meritorious issues for appeal. Counsel has also filed a
supplemental brief challenging Haines’ sentence under United
States v. Booker, 125 S. Ct. 738 (2005). Although informed of her
right to file a pro se supplemental brief, Haines has not done so.
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 Haines did not
raise a Sixth Amendment challenge or object to the mandatory
application of the guidelines in the district court, review is for
plain error. Hughes, 401 F.3d at 547. To demonstrate plain error,
an appellant must establish that an error occurred, that it was
plain, and that it affected his substantial rights. United
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States v. Olano, 507 U.S. 725, 731-32 (1993); Hughes, 401 F.3d at
547-48. If an appellant meets 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.”
Hughes, 401 F.3d at 555 (internal quotation marks and citation
omitted). Because Haines’ sentence was not enhanced based on any
controverted fact, there was no Sixth Amendment violation.
To the extent that she challenges the district court’s
application of the sentencing guidelines as mandatory, we also find
no error. To establish plain error, a defendant must “demonstrate,
based on the record, that the treatment of the guidelines as
mandatory caused the district court to impose a longer sentence
than it otherwise would have imposed.” United States v. White, 405
F.3d 208, 224 (4th Cir. 2005). In White, we determined that “the
record as whole provide[d] no nonspeculative basis for concluding
that the treatment of the guidelines as mandatory ‘affect[ed] the
district court’s selection of the sentence imposed,’” id. at 223
(quoting Williams v. United States, 503 U.S. 193, 203 (1992)).
Thus, we concluded that the error did not affect White’s
substantial rights and affirmed the sentence. Id. at 225; see also
United States v. Collins, 412 F.3d 515, 524-25 (4th Cir. 2005)
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(finding that defendant failed to demonstrate prejudice from being
sentenced under mandatory sentencing guidelines).
Likewise, the record provides no nonspeculative basis
suggesting that the district court would have sentenced Haines
differently had the guidelines been advisory instead of mandatory.
Indeed, the court had the discretion to modify or extend her period
of probation or to revoke probation and impose a term of
imprisonment. The court chose the latter option after summarizing
Haines’ failure to comply with the terms of her probation.
In accordance with Anders, we have reviewed the entire
record and have found 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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