UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4267
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
KEITH ELLIOTT BYRD,
Defendant - Appellant.
On Remand from the United States Supreme Court.
(S. Ct. No. 04-8986)
Submitted: November 23, 2005 Decided: January 6, 2006
Before LUTTIG, KING, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Daniel J. Clifton, LAW OFFICE OF DANIEL J. CLIFTON, Charlotte,
North Carolina, for Appellant. Gretchen C. F. Shappert, United
States Attorney, Charlotte, North Carolina; Amy E. Ray, Assistant
United States Attorney, Asheville, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Keith Elliott Byrd was convicted, by a jury, of
conspiracy to possess with intent to distribute (Count 1), and the
importation from Jamaica (Count 2), of between 500 grams and five
kilograms of cocaine, in violation of 21 U.S.C. §§ 841, 846 (2000),
and 21 U.S.C. §§ 952, 960 (2000), respectively. We affirmed his
conviction and sentence. See United States v. Byrd, No. 04-4267
(4th Cir. Dec. 6, 2004) (unpublished).
Byrd filed a petition for writ of certiorari in the
United States Supreme Court. His petition was granted, and this
court’s judgment was vacated in light of the decision in United
States v. Booker, 125 S. Ct. 738 (2005). Byrd’s case has been
remanded to this court for further proceedings. Id.
Byrd’s sentence was imposed prior to the decision in
Booker and its predecessor, Blakely v. Washington, 542 U.S. 296
(2004), and he did not raise objections to his sentence based on
the mandatory nature of the Sentencing Guidelines. Therefore, we
review his sentence for plain error. See United States v. Hughes,
401 F.3d 540, 546-60 (4th Cir. 2005); United States v. White, 405
F.3d 208, 215 (4th Cir. 2005).
On remand, Byrd contends that he was improperly sentenced
under a mandatory guideline regime. 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
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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. Therefore, 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.
Here, the district court sentenced Byrd at the bottom of
the applicable sentencing range. While it commented regarding
Byrd’s co-defendant’s sentence, stating that it felt the guidelines
were “harsh,” but that it nonetheless was bound by them, it made no
such comments when it sentenced Byrd earlier in the same hearing.
Nor did it make any comments in sentencing Byrd that would 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 find that Byrd cannot demonstrate that the
district court’s error in sentencing him under a mandatory
guidelines regime affected his substantial rights such that he is
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entitled to resentencing. See United States v. Olano, 507 U.S.
725, 734-35 (1993).
Accordingly, we affirm Byrd’s sentence and reinstate this
court’s prior opinion affirming his conviction and 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
*
As Byrd’s co-defendant did not join in his petition for writ
of certiorari to the Supreme Court, the Supreme Court’s order
vacating this court’s previous opinion relates to Byrd’s portion of
the appeal only, and the portion of this court’s order relating to
his co-defendant is not affected by either the Supreme Court’s
order vacating and remanding the case to this court, nor this
court’s present disposition of Byrd’s appeal.
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