UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4569
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
BRYANT JONES,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. T. S. Ellis, III, District
Judge. (CR-00-240)
Submitted: March 17, 2006 Decided: April 3, 2006
Before WILKINSON, MICHAEL, and TRAXLER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Craig W. Sampson, Richmond, Virginia, for Appellant. Patricia M.
Haynes, Assistant United States Attorney, Alexandria, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Bryant Jones was convicted by a jury of conspiracy to
commit armed bank robbery, 18 U.S.C. § 371 (2000); armed bank
robbery, 18 U.S.C. § 2113(a), (d) (2000); and use of a firearm
during the commission of a violent crime, 18 U.S.C. § 924(c)
(2000), and was originally sentenced to 147 months imprisonment.
The district court granted relief on Jones’ 28 U.S.C. § 2255 (2000)
motion in which he challenged the calculation of his guidelines
sentence. Jones was resentenced in July 2004 to 51 months on the
bank robbery offenses and a mandatory consecutive 60-month sentence
on the § 924(c) offense.
Jones appeals, claiming that the district court erred in
applying the guidelines as mandatory, in violation of United
States v. Booker, 543 U.S. 220 (2005). Because Jones did not raise
this objection below, review is for plain error. United States v.
Hughes, 401 F.3d 540, 547 (4th Cir. 2005). While the mandatory
application of the guidelines constitutes plain error, United
States v. White, 405 F.3d 208, 217 (4th Cir.), cert. denied, 126
U.S. 668 (2005), a defendant who seeks resentencing on this ground
must show actual prejudice, i.e., a “nonspeculative basis for
concluding that the treatment of the guidelines as mandatory
‘affect[ed] the district court’s selection of the sentence
imposed.’” Id. at 223 (quoting Williams v. United States, 503 U.S.
193, 203 (1992)). The sentencing transcript contains no
- 2 -
nonspeculative basis on which this court could conclude that the
district court would have imposed a lesser sentence had the court
proceeded under an advisory guideline regime. Thus, we find that
Jones has failed to demonstrate that the plain error in sentencing
him under a mandatory guideline scheme affected his substantial
rights. See id. at 225.
Accordingly, we affirm Jones’ convictions 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
- 3 -