UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4617
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ELADIO SOTO-NAVARRO,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Anderson. Henry F. Floyd, District Judge. (CR-
04-538)
Submitted: July 20, 2005 Decided: November 8, 2005
Before NIEMEYER, GREGORY, and SHEDD, Circuit Judges.
Affirmed in part; dismissed in part by unpublished per curiam
opinion.
James Barlow Loggins, Assistant Federal Public Defender,
Greenville, South Carolina, for Appellant. Jonathan S. Gasser,
Acting United States Attorney, Maxwell Cauthen, Assistant United
States Attorney, Greenville, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Eladio Soto-Navarro appeals from his forty-six-month
sentence imposed following his guilty plea to reentry by a deported
alien, in violation of 8 U.S.C. § 1326(a) (2000). Soto-Navarro’s
counsel filed a brief pursuant to Anders v. California, 386 U.S.
738 (1967), stating that there were no meritorious issues for
appeal, but addressing whether the district court erred in denying
Soto-Navarro’s motion for a downward departure in his sentence.
Counsel subsequently filed a supplemental brief addressing the
impact of United States v. Booker, 125 S. Ct. 738 (2005). The
Government has responded. Although informed of his right to file
a pro se brief, Soto-Navarro has not done so.
Soto-Navarro first claims that the court erred when it
denied his motion for a downward departure based on cultural
assimilation. Because the district court was aware of its
authority to depart and declined to do so, the decision not to
depart is not reviewable on appeal. See United States v. Bayerle,
898 F.2d 28, 30-31 (4th Cir. 1990). Accordingly, we dismiss this
portion of the appeal.
Next, Soto-Navarro argues that he was sentenced under a
mandatory application of the federal sentencing guidelines, in
violation of Booker. Because Soto-Navarro did not object below to
the mandatory application of the sentencing guidelines, appellate
review is for plain error. United States v. White, 405 F.3d 208, 215
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(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 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 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).
In this case, the court imposed the same forty-six-month
sentence as an alternate sentence in the event the guidelines were
found unconstitutional. Soto-Navarro 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. Accordingly, we find that the district court’s
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error of sentencing Soto-Navarro under a mandatory guidelines scheme
did not affect his substantial rights.
As required by Anders, we have reviewed the entire record
and have found no meritorious issues for appeal. We therefore
affirm Soto-Navarro’s conviction and sentence. We dismiss the
appeal as to Soto-Navarro’s appeal of the denial of his motion for
a downward departure. This court requires that counsel inform his
client, in writing, of his right to petition the Supreme Court of
the United States for further review. If the client requests that
a petition be filed, but counsel believes that such a petition
would be frivolous, then counsel may move in this court for leave
to withdraw from representation. Counsel’s motion must state that
a copy thereof was served on the client. 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 IN PART; DISMISSED IN PART
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