UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4537
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
HUMBERTO VALLE,
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-03-448)
Submitted: June 30, 2005 Decided: August 2, 2005
Before MOTZ, KING, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
David B. Freedman, WHITE & CRUMPLER, Winston-Salem, North Carolina,
for Appellant. Anna Mills Wagoner, United States Attorney, Sandra
J. Hairston, Assistant United States Attorney, Greensboro, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Humberto Valle pled guilty to conspiracy to distribute
more than five kilograms of cocaine hydrochloride, in violation of
21 U.S.C. § 846 (2000). He was sentenced to the statutory
mandatory minimum term of 120 months of imprisonment. See 21
U.S.C. § 841(b)(1)(A) (2000). Valle appeals his sentence.
Valle argues that the district court erred in applying
the federal sentencing guidelines as mandatory in violation of
United States v. Booker, 125 S. Ct. 738 (2005). Because Valle did
not object to his sentence in the district court on these grounds,
our review is for plain error. United States v. Hughes, 401 F.3d
540, 547 (4th Cir. 2005). To demonstrate plain error, Valle must
establish that error occurred, that it was plain, and that it
affected his substantial rights. Id. at 547-48. If a defendant
establishes these requirements, the court’s “discretion is
appropriately exercised only when failure to do so would result in
a miscarriage of justice, such as when the defendant is actually
innocent or the error seriously affects the fairness, integrity or
public reputation of judicial proceedings.” Id. at 555 (internal
quotation marks and citation omitted).
In United States v. White, 405 F.3d 208, 216-17 (4th Cir.
2005), we held that treating the guidelines as mandatory was error
and that the error was plain. However, in the absence of a Sixth
Amendment violation prejudice is not presumed, and the defendant
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bears the burden of showing that the error in application of the
then-mandatory guidelines affected the outcome of the district
court proceedings. Id. at 223. We find Valle fails to meet this
burden because he was sentenced to the statutory mandatory minimum
term of imprisonment, and thus the mandatory application of the
guidelines had no effect on his actual sentence.
Accordingly, we affirm Valle’s conviction and sentence.
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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