UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 04-4700

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

CHRISTOPHER DAMEON SMITH,

Defendant - Appellant.

Appeal from the United States District Court for the District of South Carolina, at Greenville. Henry M. Herlong, Jr., District Judge. (CR-02-1051)

Submitted: September 28, 2005 Decided: October 26, 2005

Before WILKINSON, NIEMEYER, and MICHAEL, Circuit Judges.

Affirmed by unpublished per curiam opinion.

James W. Bannister, BANNISTER & WYATT, L.L.C., Greenville, South Carolina, for Appellant. Isaac Louis Johnson, Jr., OFFICE OF THE UNITED STATES ATTORNEY, Greenville, South Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Christopher Dameon Smith appeals the 120-month sentence

imposed after he pled guilty to conspiracy to distribute and to

possess with intent to distribute five grams or more of actual

methamphetamine, more than fifty grams of a mixture or substance

containing a detectable amount of methamphetamine, and a quantity

of methylenedioxy-methamphetamine, all in violation of

(a)(1) and 846 (2000). Smith’s counsel filed a brief

pursuant to Anders v. California,

(1967), stating that

there were no meritorious issues for appeal, yet objecting to his

two-level enhancement for possession of a firearm under Blakely v.

Washington,

(2004). Because our review of the record

discloses no reversible error, we affirm Smith’s conviction and

sentence.

The presentence report attributed 397.05 kilograms of

marijuana, or a base level offense of twenty-six, pursuant to the

U.S. Sentencing Guidelines Manual (“USSG”) § 2D1.1(c)(7) (2002), to

Smith. A two-level enhancement was applied for possession of a

firearm, see USSG § 2D1.1(b)(1), and a three-level reduction was

applied for acceptance of responsibility, see USSG § 3E1.1(a),(b).

Smith did not plead guilty to the facts that would support the

enhancement for possession of the firearm. Thus, based on a total

offense level of twenty-five and a criminal history category of IV,

the recommended guideline range for imprisonment was 84 to 105

- 2 - months. However, at sentencing, Smith admitted to a predicate

offense that subjected him to a mandatory minimum sentence of 120

months under the provisions of

(2000). Smith’s

guideline range therefore became the statutory minimum of 120

months. See

(b)(1)(B) (2000). Smith was sentenced

to the statutory minimum of 120 months. See

(a)(1), (b)(1)(B), and 851 (2000).

Although Smith’s sentencing enhancement for possession of

a firearm did not alter the statutory sentence, Smith now objects

on the basis that the enhancement precluded him from qualifying for

a possible reduction in his sentence through the completion of a

drug treatment program offered by the Bureau of Prisons. The

Supreme Court has concluded that the “Bureau [of Prisons] may

categorically exclude prisoners based on their preconviction

conduct.” Lopez v. Davis,

(2001). Specifically,

the BOP has discretionary authority to deny inmates with a two-

point weapons enhancement the one-year sentence reduction after

successfully completing a Residential Drug Abuse Program. The two-

level weapons enhancement, however, did not increase Smith’s

offense level or sentence imposed and thus is not affected by

United States v. Booker,

(2005). See

(quoting Apprendi v. New Jersey,

(2000) (“[A]ny fact that increases the penalty for a crime beyond

the prescribed statutory maximum must be submitted to a jury, and

- 3 - proved beyond a reasonable doubt.”). Accordingly, we find that

this argument is without merit.

As required by Anders, we have reviewed the entire record

and have found no meritorious issues for appeal. We therefore

affirm Smith’s conviction and sentence. This court requires that

counsel inform his client, in writing, of his 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

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