UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4744
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
GEORGE ROBERT CUMMINGS,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Aiken. Margaret B. Seymour, District Judge.
(CR-03-1143)
Submitted: August 31, 2005 Decided: September 20, 2005
Before NIEMEYER, MOTZ, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Katherine E. Evatt, Assistant Federal Public Defender, Columbia,
South Carolina, for Appellant. J. Strom Thurmond, Jr., United
States Attorney, Tara M. Lyons, Assistant United States Attorney,
Columbia, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
George Robert Cummings pled guilty to being a felon in
possession of a firearm and ammunition, in violation of 18 U.S.C.
§§ 922(g)(1), 924 (2000), reserving his right to appeal the
district court’s denial of his motion to suppress evidence seized
during a traffic stop. He was sentenced to thirty months of
imprisonment. On appeal, he claims: (1) the district court erred
in denying his motion to suppress; and (2) the district court erred
in sentencing him under a mandatory application of the federal
sentencing guidelines, in violation of United States v. Booker, 125
S. Ct. 738 (2005).
This court reviews the district court’s factual findings
underlying a motion to suppress for clear error and reviews its
legal determinations de novo. Ornelas v. United States, 517 U.S.
690, 699 (1996); United States v. Rusher, 966 F.2d 868, 873 (4th
Cir. 1992). When a suppression motion has been denied, this court
construes the evidence in the light most favorable to the
government. United States v. Seidman, 156 F.3d 542, 547 (4th Cir.
1998). After having reviewed the transcript of the hearing on the
motion to suppress, the parties’ briefs, and the materials
submitted in the joint appendix, we find no reversible error.
Cummings also asserts that the district court’s mandatory
application of the sentencing guidelines was plain error under
Booker. Because this claim was not preserved for appellate review,
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it is reviewed for plain error, and Cummings has the burden of
showing that the error affected his substantial rights. United
States v. White, 405 F.3d 208, 223 (4th Cir. 2005). There is no
indication in the record that the district court would have imposed
a lower sentence under an advisory guideline system; therefore,
Cummings cannot make the necessary showing. Id. at 224-25.
Accordingly, we affirm Cummings’ 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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