UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 04-4772

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

DENNIS E. LYN,

Defendant - Appellant.

Appeal from the United States District Court for the District of

South Carolina, at Charleston. Patrick Michael Duffy, District

Judge. (CR-03-664)

Submitted: September 21, 2005 Decided: October 17, 2005

Before KING, SHEDD, and DUNCAN, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Lionel S. Lofton, V. Lynn Lofton, LOFTON & LOFTON, P.C.,

Charleston, South Carolina, for Appellant. Jonathan S. Gasser,

United States Attorney, Carlton R. Bourne, Jr., Assistant United

States Attorney, Charleston, South Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

See Local Rule 36(c).
1

Apprendi v. New Jersey, 530 U.S. 466 (2000).

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PER CURIAM:

Dennis E. Lyn pled guilty pursuant to a plea agreement to

one count of participating in an unlicenced money transmitting

business and aiding and abetting such business, in violation of 18

U.S.C. §§ 2, 1960 (2000). On appeal, Lyn claims the district court

violated the Sixth Amendment by determining his sentence based upon

the amount of money involved and that the money was derived from

unlawful activity. Finding no reversible error, we affirm. 

Because Lyn preserved his Sixth Amendment claim by

objecting to his sentence under Blakely v. Washington, 542 U.S. 296

(2004), our review is de novo. See United States v. Mackins, 315

F.3d 399, 405 (4th Cir. 2003) (“If a defendant has made a timely

and sufficient Apprendi[1] sentencing objection in the trial court,

and so preserved his objection, we review de novo.”). When a

defendant preserves a Sixth Amendment error, we “must reverse

unless we find this constitutional error harmless beyond a

reasonable doubt, with the Government bearing the burden of proving

harmlessness.” Id. (citations omitted); see United States v.

White, 405 F.3d 208, 223 (4th Cir. 2005) (discussing difference in

burden of proving that error affected substantial rights under

harmless error standard in Fed. R. App. P. 52(a), and plain error

standard in Fed. R. App. P. 52(b)).
2In determining the offense level, the district court

committed no “double counting” error by adding two levels pursuant

to U.S. Sentencing Guidelines Manual § 2S1.3(b)(1)(A) (2003). See

United States v. Schaal, 340 F.3d 196, 198 (4th Cir. 2003); United

States v. Wilson, 198 F.3d 467, 472 n.* (4th Cir. 1999). 

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There is no Sixth Amendment violation where, as here, the

sentence is based upon facts established by a guilty plea or

admitted by the defendant. Lyn admitted to the conduct that gave

rise to the adjustments. He stipulated in the plea agreement that

the amount of money involved was greater than $1,000,000. He also

agreed that the funds were derived from unlawful activity. In the

instant case, the district court did not have to engage in any fact

finding with respect to the amount of money or that the money was

derived from unlawful activity. Therefore, there was no Sixth

Amendment violation.

A district court also errs if it treats the guidelines as

mandatory in setting a sentence. See Booker, 543 U.S. at , 125

S. Ct. at 756. Although the district court considered the

guidelines mandatory, the court also announced an identical

alternate sentence, treating the guidelines as advisory and

considering 18 U.S.C. § 3553, as instructed in United States v.

Hammoud, 378 F.3d 426 (4th Cir. 2004), opinion issued by, United

States v. Hammoud, 381 F.3d 316 (4th Cir. 2004), cert. granted,

judgment vacated, 125 S. Ct. 1051 (2005). Because the sentence

would be same regardless of whether the court were to treat the

guidelines as advisory or mandatory, any error was harmless.2
3The Government had not asserted that Lyn’s appeal was barred

by the appellate waiver contained in the plea agreement, so we do

not rely upon the waiver for disposition of this case.

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Accordingly, we affirm the conviction and sentence and

deny the motion for remand.3

 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