UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 02-4713
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
LLOYD MENDEZ,
Defendant - Appellant.
On Remand from the United States Supreme Court.
(S. Ct. No. 04-7328)
Submitted: October 17, 2005 Decided: November 22, 2005
Before NIEMEYER, LUTTIG, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Christopher J. Moran, LAW OFFICE OF CHRISTOPHER J. MORAN, Columbia,
South Carolina, for Appellant. Jonathan S. Gasser, Acting United
States Attorney, Lee E. Berlinsky, Assistant United States
Attorney, Charleston, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
This case is before the court on remand from the Supreme
Court. Lloyd Mendez pled guilty to possession with intent to
distribute and distribution of fifty grams or more of cocaine base.
He was sentenced to 240 months of imprisonment. We previously
affirmed Lloyd Mendez’s conviction and sentence. United States v.
Mendez, No. 02-4713, 2004 WL 1240564 (4th Cir. June 7, 2004)
(unpublished). The Supreme Court vacated our decision and remanded
Mendez’s case to us for further consideration in light of United
States v. Booker, 125 S. Ct. 738 (2005).
In his supplemental brief, Mendez argues that he is
entitled to resentencing pursuant to Booker because he was
sentenced under a mandatory scheme. Because Mendez 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).
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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
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 Mendez fails to meet this burden. In this
case, the Government filed an information pursuant to 21 U.S.C.
§ 851 (2000), subjecting Mendez to a mandatory minimum term of
imprisonment of twenty years. 21 U.S.C. § 841(b)(1)(A) (2000).
Mendez received the lowest possible sentence allowed by statute.
Because the district court could not have imposed a lower sentence
under an advisory sentencing system, Mendez cannot make the
necessary showing. Id. at 224-25. We therefore conclude that the
district court’s error of sentencing Mendez under a mandatory
guidelines scheme did not affect his substantial rights.
Accordingly, we affirm Mendez’s sentence and reinstate
our previous opinion affirming his conviction. We dispense with
oral argument because the facts and legal contentions are
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adequately presented in the materials before the court and argument
would not aid the decisional process.
AFFIRMED
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