UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4290
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
RASHAAN CARDELL ROGERS,
Defendant - Appellant.
On Remand from the United States Supreme Court.
(S. Ct. No. 04-9515)
Submitted: October 14, 2005 Decided: November 29, 2005
Before NIEMEYER, MICHAEL, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant. Frank D. Whitney, United States Attorney, Anne M. Hayes,
Christine Witcover Dean, Assistant United States Attorneys,
Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
On January 4, 2005, we affirmed Rashaan Cardell Rogers’
conviction. See United States v. Rogers, No. 04-4290 (4th Cir.
Jan. 4, 2005) (unpublished). On May 16, 2005, the Supreme Court of
the United States granted Rogers’ petition for writ of certiorari,
vacated this court’s judgment and remanded the case to this court
for further consideration in light of United States v. Booker, 125
S. Ct. 738 (2005). After reconsideration, we affirm Rogers’
sentence and reinstate our earlier opinion affirming his
conviction.
On remand, Rogers argues that the district court violated
his Sixth Amendment rights by increasing his sentence under U.S.
Sentencing Guidelines Manual § 2K2.1(b)(4) (2003), on the basis of
facts found by a preponderance of the evidence. A Sixth Amendment
error occurs under the mandatory guidelines regime when the
district court imposes a sentence greater than the maximum
permitted based on facts found by a jury or admitted by the
defendant. Booker, 125 S. Ct. at 756. Because Rogers did not
raise a Sixth Amendment challenge in the district court, review is
for plain error. United States v. Hughes, 401 F.3d 540, 547 (4th
Cir. 2005).
Rogers was convicted of possession of a firearm by a
convicted felon. The district court determined that the firearm at
issue had an obliterated serial number and added two offense levels
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under USSG § 2K2.1(b)(4). For purposes of determining Booker
error, we consider the guideline range based on facts found by the
jury before the reduction for acceptance of responsibility. United
States v. Evans, 416 F.3d 298, 300 n.4 (4th Cir. 2005). Removing
the § 2K2.1(b)(4) enhancement and the acceptance of responsibility
reduction results in an offense level of 24, the identical offense
level under which Rogers was sentenced. Accordingly, Rogers’
sentence did not exceed the maximum authorized based on facts
admitted or found by the jury and, therefore, did not violate the
Sixth Amendment.
Next, Rogers contends that he was improperly sentenced
under a mandatory guideline system. Because this claim was not
raised below, review is for plain error. United States v. White,
405 F.3d 208, 215 (4th Cir. 2005). In White, we determined that
“even in the absence of a Sixth Amendment violation, the imposition
of a sentence under the former mandatory guidelines regime rather
than under the advisory regime outlined in Booker is error.” Id.
at 216-17. However, we declined to presume prejudice, id. at
217-22, and instead held that the prejudice inquiry 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
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to impose a longer sentence than it otherwise would have imposed.”
Id. at 224.
Here, the court imposed a sentence toward the high end of
the guidelines and did not make any further statements to indicate
that it would have imposed a different sentence under an advisory
guideline system. Therefore, as the record does not reveal a
nonspeculative basis for concluding that the district court would
have imposed a shorter sentence had it known it possessed
discretion to do so, we hold that Rogers cannot demonstrate that
the district court’s error in sentencing him under a mandatory
guidelines regime affected his substantial rights. See United
States v. Olano, 507 U.S. 725, 734-35 (1993) (under plain error
test, defendant bears burden of proving that error affected his
substantial rights).
Accordingly, we affirm Rogers’ sentence. In addition, we
reinstate our prior opinion affirming his conviction. 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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