UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4065
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
HERSHEL SMITH,
Defendant - Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Charleston. David A. Faber, Chief
District Judge. (CR-04-122)
Submitted: October 17, 2005 Decided: November 1, 2005
Before WILKINSON, WILLIAMS, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Donald L. Stennett, BREWSTER, MORHOUS, CAMERON, CARUTH, MOORE,
KERSEY & STAFFORD, PLLC, Charleston, West Virginia, for Appellant.
Charles T. Miller, Acting United States Attorney, John L. File,
Assistant United States Attorney, Beckley, West Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Hershel Smith appeals his 70-month sentence pursuant to
a guilty plea for possession of 41.1 grams of pseudoephedrine, in
violation of 21 U.S.C. § 841(c)(2) (2000). His sole argument on
appeal is that a remand is warranted because he was sentenced under
a mandatory application of the federal sentencing guidelines, in
violation of United States v. Booker, 125 S. Ct. 738 (2005). We
affirm Smith’s sentence.
Because Smith did not object below to the mandatory
application of the guidelines, we review for plain error. United
States v. White, 405 F.3d 208, 215 (4th Cir. 2005). To demonstrate
plain error, a defendant must establish that error occurred, that
it was plain, and that it affected his substantial rights. Id.
(citing United States v. Olano, 507 U.S. 725, 732 (1993)). If a
defendant establishes these requirements, the court has discretion
to correct the error, but “should not exercise . . . [that
discretion] unless the error seriously affect[s] the fairness,
integrity or public reputation of judicial proceedings.” Id.
(internal quotation marks and citation omitted).
In White, this court determined that imposing a sentence
under the guidelines as mandatory was error that was plain. White,
405 F.3d at 217. In determining whether this error affected the
defendant’s substantial rights, the court reasoned that “the error
of sentencing a defendant under a mandatory guidelines regime” was
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not an error for which prejudice would be presumed. Id. at 221.
Rather, the defendant bears the burden of showing that this error
“affected the outcome of the district court proceedings.” Id. at
223 (quoting Olano, 507 U.S. at 734). We find that Smith fails to
meet this burden because he presents no non-speculative evidence or
argument demonstrating that he would have received a lower sentence
had the district court appreciated that the guidelines were not
mandatory. We therefore conclude that the district court’s error
of sentencing Smith under a mandatory guidelines scheme did not
affect his substantial rights.
Accordingly, we affirm Smith’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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