United States v. Gamble

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 04-5011

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

JOHN AUNDO GAMBLE,

Defendant - Appellant.

Appeal from the United States District Court for the District of
South Carolina, at Florence. Terry L. Wooten, District Judge.
(CR-04-150-TLW)

Submitted: October 14, 2005 Decided: December 1, 2005

Before NIEMEYER, MICHAEL, and SHEDD, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Michael A. Meetze, Assistant Federal Public Defender, Florence,
South Carolina, for Appellant. Jonathan S. Gasser, Acting United
States Attorney, Rose Mary Parham, Assistant United States
Attorney, Florence, South Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

John Aundo Gamble appeals from his 240-month sentence

entered pursuant to his guilty plea to possession with intent to

distribute cocaine base, possession of a firearm by a convicted

felon, and use and carry of a firearm in furtherance of a drug

trafficking crime. He challenges his sentence under United

States v. Booker, 125 S. Ct. 738 (2005). We affirm.

Gamble first contends that the district court erred under

Booker by sentencing him as a career offender. Because Gamble did

not object below, his claim is reviewed for plain error. United

States v. Hughes, 401 F.3d 540, 547 (4th Cir. 2005). In Booker,

the Supreme Court found that the mandatory manner in which the

federal sentencing guidelines required courts to impose sentencing

enhancements based on facts found by the court by a preponderance

of the evidence violated the Sixth Amendment. Booker, 125 S. Ct.

at 746, 750. For a sentence imposed under the mandatory guidelines

system, the Court concluded that “[a]ny fact (other than a prior

conviction) which is necessary to support a sentence exceeding the

maximum authorized by the facts established by a plea of guilty

. . . must be admitted by the defendant.” Id. at 756.

Gamble contends that his career offender designation

required the district court to make improper factual findings.

However, he fails to point to any specific fact in dispute, and he

did not challenge any supporting facts in the district court. We

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have held that, where the facts are undisputed, the application of

the career offender enhancement falls within the exception for

prior convictions. United States v. Collins, 412 F.3d 515, 521-23

(4th Cir. 2005). Thus, there was no Sixth Amendment error in this

case.

Next, Gamble asserts that the district court erred by

sentencing him under the mandatory guidelines regime. Because

Gamble did not object to the mandatory application of the

guidelines, this claim is also reviewed for plain error. See

United States v. White, 405 F.3d 208, 215 (4th Cir. 2005). In

White, we considered whether treating the guidelines as mandatory

was plain error in light of Booker and held that it was. Id. at

216-17. While we concluded that the district court erred by

sentencing White under the mandatory guidelines scheme and that the

error was plain, we declined to presume prejudice, id. at 217-22,

and held that the “prejudice inquiry, therefore, is . . . whether

after pondering all that happened without stripping the erroneous

action from the whole, . . . the judgment was . . . substantially

swayed by the error.” Id. at 223. To make this showing, a

defendant must “demonstrate, based on the record, that the

treatment of the guidelines as mandatory caused the district court

to impose a longer sentence than it otherwise would have imposed.”

Id. at 224. Because the record provided no nonspeculative basis

for concluding that White would have received a shorter sentence

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under an advisory guidelines system, we determined that the error

did not affect White’s substantial rights and, thus, affirmed his

sentence. Id. at 225.

Here, Gamble cannot demonstrate that the court’s plain

error in sentencing him under a mandatory scheme affected his

substantial rights. While the district court did state that it was

bound by the guidelines and lacked authority to further depart, the

court did not sentence Gamble to the lowest sentence available

under the mandatory guidelines. In addition, the court indicated

that it would impose the same sentence under an advisory system.

Thus, the record provides no nonspeculative basis on which this

court could conclude that the error affected Gamble’s substantial

rights.

Accordingly, we affirm Gamble’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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