UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 05-4323

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

ANTHONY LEE PHILLIPS,

Defendant - Appellant.

No. 05-4324

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

APRIL DENISE ZIEGLER,

Defendant - Appellant.

Appeals from the United States District Court for the Southern

District of West Virginia, at Huntington. Robert C. Chambers,

District Judge. (CR-04-83)

Submitted: December 12, 2005 Decided: January 5, 2006

Before WILLIAMS, KING, and DUNCAN, Circuit Judges.
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Affirmed by unpublished per curiam opinion.

Mark F. Underwood, UNDERWOOD LAW OFFICE, INC., Huntington, West

Virginia; Donald L. Stennett, BREWSTER, MORHOUS, CAMERON, CARUTH,

MOORE, KERSEY & STAFFORD, P.L.L.C., Charleston, West Virginia, for

Appellants. Charles T. Miller, Acting United States Attorney,

Stephanie L. Haines, Assistant United States Attorney, Huntington,

West Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

See Local Rule 36(c).
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PER CURIAM:

In consolidated appeals, co-defendants Anthony Lee

Phillips and April Denise Ziegler appeal their guilty plea

convictions and sentences imposed for one count of aiding in the

distribution of cocaine base (Phillips), in violation of 21 U.S.C.

§ 841(a) (2000), 18 U.S.C. § 2 (2000), and conspiracy to distribute

cocaine base (Ziegler), in violation of 21 U.S.C. § 846 (2000).

Counsel for both Appellants have filed a consolidated brief

pursuant to Anders v. California, 386 U.S. 738 (1967), stating that

they find no meritorious grounds for appeal, but challenging the

district court’s denial of Phillips’ motion for a sentence

reduction based on minimal role. The Government has filed an

answering brief. Phillips has filed a pro se supplemental brief

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

(2004). Finding no reversible error, we affirm.

In his pro se supplemental brief, Phillips asserts that

because he only sold .83 grams of cocaine base, the district

court’s finding that he was responsible for more than 5 grams of

cocaine base amounts to an impermissible judicial enhancement, in

violation of his Sixth Amendment rights under United States v.

Booker, 125 S. Ct. 738 (2005). In Booker, the Supreme Court held

that the federal sentencing guidelines’ mandatory scheme, which

provides for sentencing enhancements based on facts found by the

court, violated the Sixth Amendment. Id. After Booker, courts
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must calculate the appropriate guideline range, consider the range

in conjunction with other relevant factors under the guidelines and

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

sentence. If a court imposes a sentence outside the guideline

range, the district court must state its reasons for doing so.

United States v. Hughes, 401 F.3d 540, 547 (4th Cir. 2005). This

remedial scheme applies to any sentence imposed under the mandatory

guidelines, regardless of whether the sentence violates the Sixth

Amendment. Id. (citing Booker, 125 S. Ct. at 769). 

Because Phillips did not raise this claim in the district

court, his sentence is reviewed for plain error. Hughes, 401 F.3d

at 547 (citing United States v. Olano, 507 U.S. 725, 731-32

(1993)). To demonstrate plain error, a defendant must establish

that error occurred, that it was plain, and that it affected his

substantial rights. Olano, 507 U.S. at 731-32; Hughes, 401 F.3d at

547-48. If a defendant establishes 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). 

We conclude that Phillips suffered no Sixth Amendment

violation. Phillips’ plea agreement clearly and unequivocally
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stipulates to his involvement in the distribution of more than five

grams of cocaine base. Moreover, at his change of plea hearing,

Phillips assured the court that he was pleading guilty to

distributing .83 grams of cocaine base as named in the indictment,

and that he was involved with an additional 4.17 grams of cocaine

base throughout the course of the conspiracy. (J.A. at 97-98).

Thus, because Phillips expressly admitted to the amount of drugs

attributed to him, we find that he suffered no Sixth Amendment

violation.

Phillips’ counsel asserts that the district court erred

by refusing to grant him a one-level reduction because he was only

a minor participant in the conspiracy. However, a careful review

of the sentencing transcript reveals that counsel did not move for

a role reduction pursuant to U.S. Sentencing Guidelines Manual

§ 3B1.2 (2004) during sentencing. Instead, while arguing the

factors listed in 18 U.S.C.A. § 3553(a), counsel asserted that

Phillips was the “most minor participant” in the conspiracy, and

urged the court to sentence Phillips below the applicable

guidelines range. The district court ultimately rejected this

request. 

We hold that Ziegler suffered no Sixth Amendment

violation as she clearly admitted to the drugs attributed to her,

and received no sentencing enhancements. Moreover, we find that

because the district court imposed a sentence within the advisory
*

The statutory maximum for violating 21 U.S.C. § 841(b)(1)(A)

(2000) is five to forty years in prison.

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guidelines range and below the statutory maximum for the offense,

Ziegler’s sentence was also reasonable.* Cf. Hughes, 401 F.3d at

546-47 (citing Booker, 125 S. Ct. at 764-65, 767) (noting after

Booker, sentencing courts should determine the sentencing range

under the guidelines, consider the other factors under § 3553(a),

and impose a reasonable sentence within the statutory maximum).

In accordance with Anders, we have reviewed the entire

record in this case and have found no meritorious issues for

appeal. We therefore affirm both Phillips’ and Ziegler’s

convictions and sentences. This court requires that counsel inform

their respective clients, in writing, of their right to petition

the Supreme Court of the United States for further review. If

either client requests that a petition be filed, but counsel

believes that such 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