UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 04-4421

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

LAUNA RENEE TURNER,

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-02-151)

Submitted: August 26, 2005 Decided: October 11, 2005

Before WILLIAMS, SHEDD, and DUNCAN, 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Affirmed by unpublished per curiam opinion.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, Michael L. Keller, Assistant United States Attorney,

Charleston, West Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

See Local Rule 36(c).
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PER CURIAM:

Launa Renee Turner pled guilty to aiding and abetting

possession of a quantity of cocaine with intent to distribute on

July 3, 2002, 21 U.S.C.A. § 841(a)(1) (West 2000 & Supp. 2005), 18

U.S.C. § 2 (2000) (Count One), and was sentenced to a term of

fifty-one months imprisonment. Turner appeals her sentence,

contending that the district court plainly erred, in light of

United States v. Booker, 125 S. Ct. 738 (2005), by calculating her

sentence based on its determination that she was responsible for

other drugs and currency seized at her arrest, as well as the drug

equivalent of vehicles and household items that the court

determined were bought with proceeds of drug sales, in violation of

the Sixth Amendment. Id. at 756. Turner also argues that the

court plainly erred by failing to treat the guidelines as advisory,

id. at 757, and clearly erred in denying her an adjustment for

acceptance of responsibility. U.S. Sentencing Guidelines Manual

§ 3E1.1 (2002). For the reasons explained below, we affirm.

When Turner and her boyfriend, Darrell Spence, were

arrested on July 3, 2002, law enforcement authorities seized an

ounce and a half of cocaine, as well as quantities of marijuana,

MDMA, and hydrocodone. Turner was released on bond. After her

guilty plea, she cooperated with authorities, but her bond was

revoked in August 2002 after she tested positive four times for

cocaine use. At Turner’s sentencing, without objection, the
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district court adopted the probation officer’s recommendation to

convert to marijuana equivalents all the drugs and money seized

when Turner and Spence were arrested, as well as a boat, a trailer,

a vehicle, and over $20,000 in household goods purchased with cash.

Turner’s base offense level was 26, USSG § 2D1.1(c)(7), based on

100-400 kilograms of marijuana equivalent. The court subtracted

two levels under the safety valve provision in § 2D1.1(b)(6).

Despite Turner’s cooperation and her testimony at Spence’s

sentencing hearing, the district court decided against giving her

a further reduction for acceptance of responsibility because of her

continued use of illegal drugs while on pretrial release. Turner’s

final offense level was 24. She was in criminal history category

I, making her guideline range 51-63 months. The court imposed a

sentence of fifty-one months imprisonment.

Turner first argues that the calculation of her offense

level violated the Sixth Amendment because her base offense level

was increased based on facts found by the court that were not

charged in the indictment, presented to a jury, or found beyond a

reasonable doubt. Because she did not raise this issue in the

district court, our review is for plain error. United States v.

Hughes, 401 F.3d 540, 547 (4th Cir. 2005). To establish error,

Turner must show that the court imposed a guideline sentence

greater than the maximum authorized by the facts she admitted.

Booker, 125 S. Ct. at 756; Hughes, 401 F.3d at 547. 
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Turner argues that her base offense level should have

been 14, because she pled guilty to possessing cocaine with intent

to distribute on July 3, 2002, and approximately thirty-nine grams

of cocaine was seized that day. An offense involving 25-50 grams

of cocaine has a base offense level of 14, USSG § 2D1.1(c)(14),

while a base offense level of 26 applies when the offense involved

500 grams to two kilograms of cocaine. USSG § 2D1.1(c)(7).

However, in her presentence interview, Turner admitted to facts

that justified the base offense level of 26. Turner told the

probation officer that she and Spence began buying a kilogram of

cocaine every other week in October 2001 and, before their arrest

in July 2002, were distributing a kilogram of cocaine every other

week. Therefore, no Sixth Amendment violation occurred. United

States v. Evans, 416 F.3d 298, 300-301 (4th Cir. 2005) (holding

that there is no Sixth Amendment error when the sentence does not

exceed the maximum authorized by facts the defendant admitted). 

We review the district court’s decision that Turner had

not accepted responsibility for clear error. Denial of the

adjustment because of continued criminal conduct after indictment

is not clearly erroneous. United States v. Kidd, 12 F.3d 30, 34

(4th Cir. 1993). We conclude that the district court did not

clearly err in denying Turner the adjustment for continued drug use

on pretrial release.
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Finally, in her supplemental brief, Turner asserts that

the district court erred in applying the guidelines as a mandatory

scheme to deny her a reduction for acceptance of responsibility.

The court undeniably regarded the guidelines as mandatory, and

therefore erred. United States v. White, 405 F.3d 208, 216-17 (4th

Cir. 2005) (holding that, “even in the absence of a Sixth Amendment

violation, the imposition of a sentence under the former mandatory

guidelines regime rather than under the advisory regime outlined in

Booker is [plain] error”). However, a defendant must show that the

error affected her substantial rights. White, 405 F.3d at 217-22.

To make this showing, a defendant must “demonstrate, based on the

record, that the treatment of the guidelines as mandatory caused

the district court to impose a longer sentence than it otherwise

would have imposed.” Id. at 224. 

Turner points out that the court stated, “I just feel

like it would fly in the face of the Guidelines for me to [make the

adjustment] in this instance.” In addition to this statement, the

court later stated explicitly that it was “bound by the guidelines

. . .” and that Turner should be “sentenced at the bottom of the

guidelines.” The district court did not indicate, however, that it

would have preferred a lesser sentence. The court stated that

Turner’s sentence was “a significant sentence, which reflects the

seriousness of the offenses you’ve committed.” Thus, Turner has

failed to demonstrate that the plain error in sentencing her under
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a mandatory guidelines scheme affected her substantial rights. 

See White, 405 F.3d at 224 (finding that defendant failed to meet

burden of demonstrating actual prejudice where “the district court

made certain statements suggesting that it was content to sentence

[the defendant] within the guideline range”).

We therefore affirm the sentence imposed by the district

court. 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