UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 04-4281

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

LISA PATRICE OLIVER,

Defendant - Appellant.

Appeal from the United States District Court for the Middle

District of North Carolina, at Durham. N. Carlton Tilley, Jr.,

Chief District Judge. (CR-03-310)

Submitted: October 31, 2005 Decided: November 21, 2005

Before WILKINSON, GREGORY, and DUNCAN, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Louis C. Allen, III, Federal Public Defender, Gregory Davis,

Assistant Federal Public Defender, Greensboro, North Carolina, for

Appellant. Angela Hewlett Miller, OFFICE OF THE UNITED STATES

ATTORNEY, Greensboro, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

See Local Rule 36(c).
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PER CURIAM:

Lisa Patrice Oliver pled guilty to possessing with intent

to distribute 226.7 grams of cocaine base. The district court

calculated Oliver’s sentence based on this amount of drugs using

the Federal Sentencing Guidelines and sentenced her within a

properly calculated Guideline range to 188 months of imprisonment.

On appeal, counsel has filed a brief under Anders v.

California, 386 U.S. 738 (1967), alleging that there are no

meritorious claims on appeal but raising the following issue:

whether the district court erred in determining the quantity of

drugs upon which Defendant’s offense level was calculated.

Thereafter, counsel filed a Fed. R. Crim. P. 28(j) motion

questioning whether Oliver’s sentence was correctly determined in

light of the Supreme Court’s opinion in Blakely v. Washington, 542

U.S. 296 (2004). Thereafter, the Supreme Court extended the

holding of Blakely to the Federal Sentencing Guidelines in United

States v. Booker, 125 S. Ct. 738 (2005). For the reasons that

follow, we affirm Oliver’s conviction and sentence.

In Booker the Supreme Court held that, when a defendant

is sentenced under the mandatory Guidelines scheme, “[a]ny 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
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defendant or proved to a jury beyond a reasonable doubt.” 125 S.

Ct. at 756.

This court has identified two types of Booker error: a

violation of the Sixth Amendment, and a failure to treat the

sentencing guidelines as advisory. United States v. Hughes, 401

F.3d 540, 552 (4th Cir. 2005). A Sixth Amendment error occurs when

the district court imposes a sentence greater than the maximum

permitted based on facts found by a jury or admitted by the

defendant. Booker, 125 S. Ct. at 756. Because Oliver did not

raise a Sixth Amendment challenge or object to the mandatory

application of the Guidelines in the district court, we review the

claim for plain error. Hughes, 401 F.3d at 547.

Here, because Oliver admitted to possessing with intent

to distribute 226.7 grams of crack, she has admitted to the drug

weight used to calculate her sentence using a base offense level of

34. See USSG § 2D1.1(c)(3). A base offense level of 34, combined

with her criminal history of IV, yields a sentencing range of 210

to 262 months of imprisonment. Thus, because Oliver’s 188-month

sentence does not exceed the maximum of this range, there was no

Sixth Amendment violation. See United States v. Evans, 416 F.3d

298, 300-01 (4th Cir. 2005) (holding that if sentence does not

exceed maximum authorized by facts admitted by defendant or found

by jury, there is no Sixth Amendment violation). Neither do we

find that there is a nonspeculative basis for remanding to the
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district court to determine whether Oliver was prejudiced by the

mandatory application of the Guidelines to her sentence. See

United States v. White, 405 F.3d 208, 223 (4th Cir. 2005), petition

for cert. filed, Oct. 13, 2005 (No. 05-6981). 

We have examined the entire record in this case

(including the issues raised in Oliver’s pro se supplemental brief)

in accordance with the requirements of Anders, and find no

meritorious issues for appeal. Accordingly, we affirm. This court

requires that counsel inform his client, in writing, of her 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. 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