UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                              No. 05-4489



UNITED STATES OF AMERICA,

                                             Plaintiff - Appellee,

          versus


OZZIE ANTHONY COLE, a/k/a T, a/k/a Jamaican T,

                                            Defendant - Appellant.



Appeal from the United States District Court for the Northern
District of West Virginia, at Martinsburg. W. Craig Broadwater,
District Judge. (CR-01-25)


Submitted:   April 21, 2006                 Decided:   May 15, 2006


Before NIEMEYER, TRAXLER, and KING, Circuit Judges.


Affirmed in part and remanded by unpublished per curiam opinion.


David W. Frame, Clarksburg, West Virginia, for Appellant.
Thomas E. Johnston, United States Attorney, Thomas O. Mucklow,
Assistant United States Attorney, Martinsburg, West Virginia, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

              Ozzie Anthony Cole appeals an order of the district court

finding that the sentence previously imposed was correct and

declining to resentence him. We agree that Cole’s sentence was not

erroneous, and affirm the district court’s order to that extent.

We remand the case so that the district court may reenter the

original judgment and commitment order nunc pro tunc.

              Cole pled guilty to distribution of 2.12 grams of cocaine

base “crack,” and was initially sentenced to a term of 188 months

imprisonment.       In his first appeal, Cole challenged the two-level

role adjustment he had received under U.S. Sentencing Guidelines

Manual   §    3B1.1(c)   (2001),    based      on    information        that    he     had

regularly fronted crack to defendant Howard (Happy) Peterson with

the understanding that Peterson would sell the crack and return

some of the money to him.       Cole maintained that the role adjustment

was   based    on   protected     information        he   had       provided    to     the

government pursuant to the cooperation provision in his plea

agreement.      See USSG § 1B1.8(a), (b)(1) & comment. (n.1) (self-

incriminating       information    provided         by    a    defendant       under     a

cooperation agreement may not be used to determine the guideline

range unless the information was already known to the government

before the defendant entered into the cooperation agreement). Cole

also claimed that the government had breached the plea agreement by

refusing      to    recommend     an    adjustment            for     acceptance        of


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responsibility under USSG § 3E1.1.         We found no merit in the latter

claim and affirmed the sentence in part, but vacated the sentence

and   remanded   with   directions    that    the      district    court    should

determine whether the government already knew of Cole’s arrangement

with Peterson before Cole provided that information pursuant to the

cooperation agreement. United States v. Cole, No. 02-4507, 

(4th Cir. Feb. 17, 2004) (unpublished).

           On remand, the government produced evidence that it

obtained the relevant information from three witnesses before Cole

entered into his plea agreement.           At a hearing on April 4, 2005,

the district court determined that Cole’s debriefing statement had

not been used to calculate his guideline range, and that the

sentence   previously    imposed    need    not   be    changed.      The   court

informed Cole that he could appeal the court’s decision. The court

entered an order on April 6, 2005, setting out its finding and

stating that it was not necessary to resentence Cole.                 From this

order, Cole has appealed.

           Cole effectively concedes that the government obtained

information that Peterson sold crack for him before he entered into

his cooperation agreement.         He now contends that the information

was unreliable until he confirmed it in his debriefing and that,

because the information lacked sufficient indicia of reliability,

it should not have been considered by the district court to resolve




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his   objection   to   the   role   adjustment.        See   USSG    §   6A1.3(a)

(Resolution of Disputed Factors).1

            The district court did not clearly err in deciding the

factual issue before it on remand, i.e., that the government knew

of the information on which the role adjustment was based before

Cole entered into his plea agreement and was debriefed.                         The

credibility of the information provided by those witnesses was not

directly challenged by defense counsel on remand, and the district

court made no finding concerning their reliability.                 Because Cole

waived his right to appeal the sentence, any challenge to the

district    court’s    determination      of   the   offense   level     that    is

distinct from his claim that the government breached the plea

agreement    by   allowing    the   use    of    protected     information      is

foreclosed by the waiver provision in the plea agreement.2

            Cole acknowledges that, under United States v. Blick, 

(4th Cir. 2005), his pre-Booker waiver of appeal rights


      1
      This guideline section provides that, to resolve disputed
sentencing factors, “the court may consider relevant information
without regard to its admissibility under the rules of evidence
applicable at trial, provided that the information has sufficient
indicia of reliability to support its probable accuracy.”
      2
      The assertions of error that Cole makes in his pro se
supplemental brief based on Apprendi v. New Jersey, 

(2000), Blakely v. Washington, 

(2004), and United
States v. Booker, 

(2005), are similarly waived. Even
if the role adjustment issue were properly raised on appeal, we
would conclude that the district court did not plainly err in
finding,   impliedly,   that   the  witnesses’   information   was
sufficiently credible to warrant consideration. See United
States v. Olano, 

, 731-32 (1993) (standard of review).

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remains valid, but he urges us to reconsider Blick in light of

Booker and two other recent Supreme Court decisions.                     However,

“[i]t is well settled that, ‘a panel of this court cannot overrule,

explicitly or implicitly, the precedent set by a prior panel of

this court.    Only the Supreme Court or this court sitting en banc

can do that.’”      United States v. Chong, 

, 346-47 (4th

Cir. 2002) (citation omitted).

           Moreover, because Cole did not challenge the validity of

his waiver in the first appeal, the mandate rule precludes him from

challenging    it     at    this   point,    unless   the    “controlling   legal

authority has changed dramatically.” United States v. Bell, 

, 67 (4th Cir. 1993).            Cole first suggests that the waiver was

invalidated by Booker because he did not recognize his Sixth

Amendment rights when he pled guilty.              This claim was rejected in

.        Cole   also   urges   this   court   to

reconsider Blick in light of Halbert v. Michigan, 

,

2594 (2005) (holding that indigent state defendant could not

implicitly waive right to appointed appellate counsel unrecognized

at the time of his nolo contendere plea).                 As explained above, we

lack authority to do that; in addition, we note that the Fifth

Circuit has held that Halbert does not govern where a defendant

makes an explicit waiver of his statutory, non-constitutional right

to appeal his sentence.        United States v. Burns, 

, 446-

50 (5th Cir. 2005).


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           Cole also relies on Crawford v. Washington, 

(2004). In Crawford, the Supreme Court held that the Confrontation

Clause prohibits the admission of testimonial statements that are

not subject to cross-examination.       

Crawford,

this court held that, in making a factual determination, the

sentencing    court    may   consider    any    reliable   and   relevant

information, including hearsay.     United States v. Puckett, 

, 1095 (4th Cir. 1995); see also 18 U.S.C. § 3661 (2000); Fed.

R. Evid. 1101(d)(3).    Since Crawford was decided, several circuits

have held that it did not make the Confrontation Clause applicable

to sentencing.    See United States v. Chau, 

, 1323

(11th Cir. 2005); United States v. Roche, 

, 618 (7th

Cir.), cert. denied, 

(2005); United States v. Luciano,

, 179 (1st Cir. 2005); United States v. Martinez, 

, 243-44 (2d Cir. 2005), cert. denied, 

(2006).    In light of these authorities, we discern no basis for

Cole’s claim that Crawford invalidates his waiver.

           We grant Cole’s motions to file a pro se supplemental

brief.    We have considered the issues raised in the pro se brief

and find them to be without merit.             Therefore, we affirm the

district court’s findings concerning the sentence.           Because the

district court did not reimpose the sentence, we remand the case

for the sole purpose of allowing the district court to reenter the

original judgment order nunc pro tunc.            See United States v.


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Dodson, 

, 272 (4th Cir. 2002) (“a criminal ‘judgment’

includes both a conviction and its associated sentence, so that a

‘judgment of conviction’ cannot be final . . . until both the

conviction and sentence . . . are final”).   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 AND REMANDED




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