UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 04-4190

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

JAMES GOLLICK,

Defendant - Appellant.

Appeal from the United States District Court for the Southern

District of West Virginia, at Bluefield. David A. Faber, Chief

District Judge. (CR-03-160)

Submitted: June 16, 2006 Decided: July 11, 2006

Before MICHAEL, MOTZ, and TRAXLER, Circuit Judges.

Affirmed in part, vacated in part, and remanded by unpublished per

curiam opinion.

Sante Boninsegna, Jr., Pineville, West Virginia, for Appellant.

Kasey Warner, United States Attorney, John J. Frail, Assistant

United States Attorney, Charleston, West Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

See Local Rule 36(c).
1We construed Gollick’s pleading filed on December 15, 2004,

as his pro se supplemental brief.

2Just as we noted in United States v. Hughes, 401 F.3d 540,

545 n.4 (4th Cir. 2005), “[w]e of course offer no criticism of the

district judge, who followed the law and procedure in effect at the

time” of Gollick’s sentencing. See generally Johnson v. United

States, 520 U.S. 461, 468 (1997) (stating an error is “plain” if

“the law at the time of trial was settled and clearly contrary to

the law at the time of appeal”).

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PER CURIAM:

James Gollick appeals his sentence to eighty-seven months

in prison and three years of supervised release after pleading

guilty to possession with intent to distribute a quantity of

oxycodone, also known as oxycontin, on or about October 17, 2002,

in violation of 21 U.S.C. § 841(a)(1) (2000). Gollick’s attorney

filed a brief pursuant to Anders v. California, 386 U.S. 738

(1967), raising the issues of whether the district court erred in

calculating the drug weight for sentencing purposes and whether his

sentence violated the Sixth Amendment under Blakely v. Washington,

542 U.S. 296 (2004). Gollick filed a pro se supplemental brief

further addressing the drug weight issue and alleging ineffective

assistance of counsel at sentencing and on appeal.1 Because we

find plain error occurred in Gollick’s sentencing under United

States v. Booker, 543 U.S. 220 (2005), we vacate his sentence and

remand for resentencing in accordance with Booker.2

Because Gollick raised no objection at sentencing, we

review his sentence for plain error. See United States v. Hughes,
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401 F.3d 540, 547 (4th Cir. 2005). “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 the

jury beyond a reasonable doubt.” Booker, 543 U.S. at 244. We will

find plain error if the district court could not have imposed the

sentence it did without exceeding the relevant Sixth Amendment

limitation. See Hughes, 401 F.3d at 550-51.

Gollick pled guilty to possession with intent to

distribute a quantity of oxycodone. Although ninety and one-half

eighty-milligram oxycontin pills were seized from Gollick, he did

not stipulate to any drug quantity and no amount was indicated in

either the plea agreement or the indictment. The district court

determined Gollick’s base offense level was twenty-eight under U.S.

Sentencing Guidelines Manual (“USSG”) § 2D1.1(c) (2001) based on

findings in the presentence report that Gollick was responsible for

3100 eighty-milligram oxycontin tablets. With a three-level

reduction for acceptance of responsibility and criminal history

category III, Gollick’s sentencing guideline range was seventy to

eighty-seven months. While Gollick did not object to the

presentence report, his silence did not constitute an admission to

drug weight under Booker. See United States v. Milam, 443 F.3d 382

(4th Cir. 2006). If Gollick had been sentenced based on the ninety

and one-half oxycontin pills, his base offense level would have
3

Although the Sentencing Guidelines are no longer mandatory,

Booker makes clear that a sentencing court must still “consult

[the] Guidelines and take them into account when sentencing.”

Booker, 543 U.S. at 264. On remand, the district court should

first determine the appropriate sentencing range under the

guidelines, making all factual findings appropriate for that

determination. See Hughes, 401 F.3d at 546. The court should

consider this sentencing range along with the other factors

described in 18 U.S.C. § 3553(a) (2000), and then impose a

sentence. Id. If that sentence falls outside the guidelines

range, the court should explain its reasons for the departure as

required by 18 U.S.C. § 3553(c)(2) (2000). Id. The sentence must

be “within the statutorily prescribed range . . . and reasonable.”

Id. at 546-47.

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only been sixteen, see USSG § 2D1.1, resulting in a guideline range

of twenty-seven to thirty-three months. Because Gollick’s sentence

clearly exceeded the maximum authorized by his guilty plea, we find

plain error occurred at sentencing that affected his substantial

rights. We find Gollick’s remaining issues are meritless. We find

no support for Gollick’s challenge to the calculation of drug

weight, and we conclude his claims of ineffective assistance of

counsel should be raised in a 28 U.S.C. § 2255 (2000) proceeding.

See United States v. Richardson, 195 F.3d 192, 198 (4th Cir. 1999).

In accordance with Anders, we have reviewed the entire

record in this case and affirm Gollick’s conviction. We conclude,

however, that Gollick’s sentencing violated Booker. Accordingly,

although we affirm Gollick’s conviction, we vacate his sentence and

remand for resentencing.3 We deny Gollick’s counsel’s motion to

seal the Anders notice. We also deny Gollick’s pro se motions
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requesting new counsel, transcripts at government expense, and an

extension of time for additional pro se supplemental briefing.

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 IN PART,

VACATED IN PART, AND REMANDED