UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4769
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JULIO GUZMAN, a/k/a Van,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. James C. Fox, Senior
District Judge. (CR-03-119-F)
Submitted: July 29, 2005 Decided: August 18, 2005
Before WILKINSON, LUTTIG, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Samuel John Randall, IV, Wilmington, North Carolina, for Appellant.
Frank D. Whitney, United States Attorney, Anne M. Hayes, Christine
Witcover Dean, Assistant United States Attorneys, Raleigh, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Following a jury trial, Julio Guzman was convicted of
being a felon in possession of a firearm, in violation of 18 U.S.C.
§ 922(g)(1) (2000). The district court sentenced Guzman to 120
months of imprisonment. The court also specified an identical
alternate sentence of 120 months pursuant to this court’s
recommendation in United States v. Hammoud, 378 F.3d 426 (4th Cir.)
(order), opinion issued by 381 F.3d 316 (4th Cir. 2004) (en banc),
vacated, 125 S. Ct. 1051 (2005).
Guzman appeals, asserting that, pursuant to United
States v. Booker, 125 S. Ct. 738 (2005), his sentence violates the
Sixth Amendment because it was enhanced under the mandatory federal
sentencing guidelines scheme based on facts that were not found by
a jury beyond a reasonable doubt. Although we agree that a Sixth
Amendment violation occurred, we conclude that any error resulting
from the sentence imposed by the district court is harmless. Id.
at 769 (Breyer, J., opinion of the Court). Because the alternate
sentence the district court pronounced pursuant to 18 U.S.C.A.
§ 3553(a) (West 2000 & Supp. 2005), treating the sentencing
guidelines as advisory only, was identical to the sentence imposed
under the mandatory federal sentencing guidelines as they existed
at that time, the mandatory application of the guidelines “did not
affect the district court’s selection of the sentence imposed.”
Williams v. United States, 503 U.S. 193, 203 (1992).
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Accordingly, we affirm Guzman’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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