United States v. Necessary , 219 F. App'x 330 ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4905
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
SHARON LEE NECESSARY,
Defendant - Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Beckley. David A. Faber, Chief
District Judge. (5-05-cr-00033)
Submitted: February 22, 2007 Decided: February 27, 2007
Before WILLIAMS, MOTZ, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Patricia A. Kurelac, KURELAC LAW OFFICES, Moundsville, West
Virginia, for Appellant. Charles T. Miller, United States Attorney,
Charleston, West Virginia, John L. File, Assistant United States
Attorney, Beckley, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Sharon Lee Necessary pled guilty to conspiracy to
distribute methamphetamine, 21 U.S.C. § 846 (2000), and was
sentenced to a term of seventy months imprisonment. Necessary
appeals her sentence, contending that her Sixth Amendment rights
were violated by the district court’s fact findings concerning the
drug amount and the applicability of a weapon enhancement. U.S.
Sentencing Guidelines Manual § 2D1.1(b)(1) (2004). We affirm.
In the district court, Necessary contested the drug
amount and the firearm enhancement on factual grounds, but did not
raise a Sixth Amendment claim. On appeal, relying on United
States v. Milam, 443 F.3d 382 (4th Cir. 2006), Necessary argues
that, following the Supreme Court’s decision in United States v.
Booker, 543 U.S. 220 (2005), the sentencing court may consider only
such facts pertinent to the sentence that were proved to a jury
beyond a reasonable doubt or were admitted by the defendant, even
when the sentencing guidelines are applied as advisory. We review
her claim for plain error, see United States v. Hughes, 401 F.3d
540, 547-48 (4th Cir. 2005), and conclude that it is without merit.
Milam addressed sentences that were imposed under a mandatory
guideline scheme. When a defendant is sentenced under the
post-Booker advisory guideline scheme, the district court may make
factual findings about sentencing factors without violating the
Sixth Amendment, as long as the sentence does not exceed the
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statutory maximum sentence for the offense of conviction. United
States v. Morris, 429 F.3d 65, 72 (4th Cir. 2005). Necessary’s
seventy-eight-month sentence did not exceed the twenty-year
statutory maximum sentence applicable to the offense to which she
pled guilty. No error occurred.
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
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