UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4129
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
TERRY LYNN KYLE, a/k/a Blackeye,
Defendant - Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Beckley. David A. Faber, Chief
District Judge. (CR-03-88)
Submitted: December 7, 2005 Decided: January 9, 2006
Before NIEMEYER, LUTTIG, and MICHAEL, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Jacqueline A. Hallinan, HALLINAN LAW OFFICES, P.L.L.C., Charleston,
West Virginia, for Appellant. Kasey Warner, United States
Attorney, Miller A. Bushong, III, 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Unpublished opinions are not binding precedent in this circuit.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:
Terry Lynn Kyle appeals his sentence to seventy-one
months in prison, a $1500 fine, and three years of supervised
release following his guilty plea to distribution of 6.49 grams of
cocaine powder in violation of 21 U.S.C. § 841(a)(1) (2000). On
appeal, Kyle contends his sentence violates United States v.
Booker, 543 U.S. 220 (2005). We affirm.
Kyle’s sentence was imposed before the decisions of
Booker and its predecessor, Blakely v. Washington, 542 U.S. 296
(2004), and he did not raise objections to his sentence in the
district court based on the mandatory nature of the sentencing
guidelines or the district court’s application of sentencing
enhancements based on facts not admitted by him or found by the
jury beyond a reasonable doubt. Therefore, we review his sentence
for plain error. See United States v. Hughes, 401 F.3d 540, 546-60
(4th Cir. 2005).
At sentencing, Kyle objected to the probation officer’s
determination that he should be held accountable for distribution
of at least 3.5 kilograms of cocaine powder under U.S. Sentencing
Guidelines Manual § 2D1.1 (2003), resulting in a base offense level
of thirty. He further objected to an enhancement for firearm
possession and the denial of a reduction for acceptance of
responsibility. However, Kyle acknowledged his involvement in the
distribution of up to two kilograms of cocaine powder and acceded
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to a base offense level of twenty-six. The district court
sustained Kyle’s objections. Accordingly, the court found his
offense level was twenty-three. With his criminal history category
of III, Kyle’s guideline range was fifty-seven to seventy-one
months.
Because Kyle admitted the facts underlying his sentence,
we conclude there was no Sixth Amendment error. See Booker, 543
U.S. at ___, 125 S. Ct. at 756 (“Any 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 defendant or proved to a
jury beyond a reasonable doubt.”). Although the district court
erred by treating the guidelines as mandatory, Kyle has not shown
his substantial rights were affected by the error. Kyle received
a sentence at the high end of his guideline range, and the record
provides no nonspeculative basis for concluding he would have
received a lesser sentence if the guidelines were advisory. See
United States v. White, 405 F.3d 208, 223-24 (4th Cir. 2005), cert.
denied, 2005 WL 3027841 (U.S. Nov. 14, 2005) (No. 05-6981).
Accordingly, we affirm. 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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