UNPUBLISHED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Affirmed in part, vacated in part, and remanded by unpublished per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Unpublished opinions are not binding precedent in this circuit.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).
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, 

(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,

(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, 

(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,



     1
      We construed Gollick’s pleading filed on December 15, 2004,
as his pro se supplemental brief.
     2
      Just as we noted in United States v. Hughes, 

,
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, 

, 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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, 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.”         

.        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 

.

           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, 

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

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


                                      - 3 -
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, 

, 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




     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.”

.    On remand, the district court should
first determine the appropriate sentencing range under the
guidelines, making all factual findings appropriate for that
determination.   See 

.    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.   

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). 

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

4 -
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




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