UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4805
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
LUCIANO ARGUETA-ROMERO,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. Frank W. Bullock, Jr.,
District Judge. (CR-04-121)
Submitted: September 29, 2005 Decided: October 5, 2005
Before WILKINSON, KING, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Danielle Bess Obiorah, LAW OFFICES OF DANIELLE BESS OBIORAH, P.C.,
Charlotte, North Carolina, for Appellant. Anna Mills Wagoner,
United States Attorney, Angela H. Miller, 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Unpublished opinions are not binding precedent in this circuit.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:
Luciano Argueta-Romero appeals from his 78-month sentence
entered pursuant to his guilty plea to illegal re-entry by a
deported felon. On appeal, Argueta-Romero argues that the district
court erred in failing to treat the Sentencing Guidelines as
advisory and consider all factors of 18 U.S.C.A. § 3553(a) (West
2000 & Supp. 2005), in light of the Supreme Court’s decisions in
Blakely v. Washington, 542 U.S. 296 (2004) and United States v.
Booker, 125 S. Ct. 738 (2005).
Argueta-Romero did not raise the sentencing issue at
trial, thus he must demonstrate plain error. Fed. R. Civ. P.
52(b). To demonstrate plain error, a defendant must establish that
error occurred, that it was plain, and that it affected his
substantial rights. United States v. Olano, 507 U.S. 725, 731-32
(1993); United States v. Hughes, 401 F.3d 540, 547-48 (4th Cir.
2005). 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.”
Hughes, 401 F.3d at 555 (internal quotation marks and citation
omitted).
In United States v. White, 405 F.3d 208 (4th Cir. 2005),
this court determined that imposing a sentence under the guidelines
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as mandatory was error that was plain. 405 F.3d at 216-17.
However, the court in White then discussed the third prong of the
plain error analysis. In determining whether an error affected the
defendant’s substantial rights, the court reasoned that “the error
of sentencing a defendant under a mandatory guidelines regime” was
not an error for which prejudice would be presumed. Id. at 219-20,
224. Rather, the defendant bears the burden of showing that this
error prejudiced him, or “‘affected the outcome of the district
court proceedings.’” Id. at 223 (quoting Olano, 507 U.S. at 734).
In making this determination, the court must consider the standard
in Kotteakos v. United States, 328 U.S. 750, 765 (1946): “whether
‘after pondering all that happened without stripping the erroneous
action from the whole, . . . the judgment was . . . substantially
swayed by the error.’” White, 405 F.3d at 223 (citations and
footnotes omitted). Here, Argueta-Romero provides no non-
speculative basis for concluding that the treatment of the
Guidelines as mandatory affected the selection of the sentence
imposed. The district court did not make any statements indicating
that it wished to impose a sentence below the guideline range and
in fact discussed that the mid-range sentence was appropriate
because Argueta-Romero had been in effect deported twice and that
the sentence was fair.
We therefore conclude that Argueta-Romero did not carry
his burden and the sentence should be affirmed. Accordingly, we
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affirm Argueta-Romero’s 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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