UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 05-4239

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

HERBERT BRUCE BAILEY,

Defendant - Appellant.

Appeal from the United States District Court for the District of

South Carolina, at Orangeburg. Margaret B. Seymour, District

Judge. (CR-03-402)

Submitted: December 22, 2005 Decided: December 28, 2005

Before WIDENER, NIEMEYER, and KING, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Cameron B. Littlejohn, Jr., Columbia, South Carolina, for

Appellant. Jane Barrett Taylor, OFFICE OF THE UNITED STATES

ATTORNEY, Columbia, South Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

See Local Rule 36(c).
*

The probation officer calculated a sentencing guideline range

of 135 to 169 months’ imprisonment founded on a base offense level

of 38 (using a drug quantity of 5.5 kilos of crack cocaine and 3.2

kilos of powder cocaine), an adjusted offense level of 33, and a

criminal history category of I. After careful consideration of the

facts and evidence, the district court applied an additional threelevel reduction to the offense level after considering the drug

weight which Bailey admitted distributing, his sparse criminal

record, and his lack of leadership involvement, with an attendant

revised guideline range of 97 to 121 months.

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PER CURIAM:

Herbert Bruce Bailey pled guilty to distribution of 23.31

grams of crack cocaine, in violation of 21 U.S.C. § 841(a)(1)

(2000). The district court sentenced Bailey to 100 months’

imprisonment, five years of supervised release, and ordered payment

of a $100 statutory assessment.* Bailey’s counsel has filed a

brief pursuant to Anders v. California, 386 U.S. 738 (1067),

stating that there are no meritorious grounds for appeal, but

questioning whether the district court complied with the

requirements of Fed. R. Crim. P. 11 in accepting Bailey’s plea, and

whether the sentence imposed was reasonable. Bailey was given an

opportunity to file a pro se brief, and has asserted error pursuant

to United States v. Booker, 543 U.S. 220, 125 S. Ct. 738 (2005).

Bailey did not move in the district court to withdraw his

guilty plea; therefore his challenge to the adequacy of the Rule 11

hearing is reviewed for plain error. See United States v.

Martinez, 277 F.3d 517, 525 (4th Cir. 2002). We have carefully

reviewed the transcript of the Rule 11 hearing and find no plain
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error in the district court’s acceptance of Bailey’s guilty plea.

See United States v. DeFusco, 949 F.2d 114, 119-20 (4th Cir. 1991).

We further find that the district court properly

“consult[ed the] Guidelines and [took] them into account when

sentencing,” Booker, 125 S. Ct. at 767, that it made all the

factual findings appropriate for that determination, considered the

sentencing range along with the other factors described in 18

U.S.C.A. § 3553(a) (West 2000 & Supp. 2005), and imposed a sentence

that was “within the statutorily prescribed range and . . .

reasonable.” United States v. Hughes, 401 F.3d 540, 546-47 (4th

Cir. 2005). Contrary to the assertions of Bailey and his attorney,

the district court properly sentenced Bailey in compliance with the

mandates of Booker and the sentence was reasonable.

In accordance with Anders, we have reviewed the entire

record in this case and have found no meritorious issues for

appeal. We therefore affirm Bailey’s conviction and sentence.

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.
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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