                                UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                                No. 09-4071


UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

             v.

EVERETT MICHAEL BYERS,

                  Defendant - Appellant.



Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. James A. Beaty, Jr.,
Chief District Judge. (1:08-cr-00129-JAB-1)


Submitted:    October 7, 2009                 Decided:   October 29, 2009


Before WILKINSON and      NIEMEYER,   Circuit    Judges,   and   HAMILTON,
Senior Circuit Judge.


Affirmed by unpublished per curiam opinion.


Eugene E. Lester, III, SHARPLESS & STAVOLA, PA, Greensboro,
North Carolina, for Appellant. Anna Mills Wagoner, United States
Attorney, Terry M. Meinecke, Assistant United States Attorney,
Greensboro, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

               Everett Michael Byers appeals from his convictions for

possession of ammunition by a convicted felon and possession

with       intent     to    distribute    crack         cocaine    and    his    resulting

240-month sentence.             On appeal, Byers challenges the denial of

his motion to suppress and asserts that the district court erred

in failing to consider the sentencing disparity between crack

and    powder       cocaine    offenses   prior         to   imposing     sentence.      We

affirm.

               With        regard   to   the       denial     of    Byers’      motion   to

suppress, we have reviewed the district court’s decision, the

briefs of the parties, and the record on appeal, and we find no

reversible      error.         Accordingly,        we    find     that   the    good   faith

exception applied, and we affirm for the reasons stated by the

district court.            (J.A. at 124-37). *


       *
       Byers makes much of the district court’s alleged error in
determining that, even absent an unreliable hearsay statement,
the facts available to the magistrate placed Byers at the scene
of the shooting.      According to Byers, absent the hearsay
statement, the facts showed only that a light skinned, mixed
race man named “Mike” was at the scene.    However, the district
court’s finding that the police officer and the magistrate judge
lacked a substantial basis on which to credit the hearsay
statement does not forbid consideration of the statement in
determining whether the police officer’s testimony was “bare
bones,” such that the good faith exception should not apply.
See United States v. DeQuasie, 373 F.3d 509, 521-22 & n.17 (4th
Cir. 2004) (“If a lack of substantial basis also prevented
application of the Leon objective good faith exception, the
exception would be devoid of substance.”).         Thus, it is
(Continued)
                                               2
              Byers next asserts that the district court erred in

failing   to    consider    the   Guidelines’   disparity   for   crack   and

powder cocaine offenses.          Byers asserts that he preserved this

argument when he argued at sentencing that the Guidelines made a

“substantial difference” in his sentence.              However, in making

this statement, counsel was referring to the effect Byers’ armed

career criminal status had on his Guidelines range; the crack

and powder cocaine disparity was not mentioned or inferred.                As

such, our review is for plain error.               See United States v.

Branch, 537 F.3d 328, 343 (4th Cir. 2008), cert. denied, 129 S.

Ct. 943 (2009).

              The district court’s reliance on the crack to powder

ratios was not error, plain or otherwise, especially considering

that Byers was sentenced after the 2007 crack cocaine amendments

to the Guidelines.         See United States v. Go, 517 F.3d 216, 218

(4th   Cir.    2008)   (approving   presumption   of   reasonableness     for

sentence within properly calculated Guidelines range).             However,

even if it was error, it must still be established that the

error affected Byers’ substantial rights.           See Branch, 537 F.3d




irrelevant what the evidence showed without the hearsay
statement, since the statement was properly considered in
determining the application of the good faith exception.




                                       3
at    343.      We     have      previously        “concluded        that   the   error       of

sentencing a defendant under a mandatory guidelines regime is

neither      presumptively           prejudicial         nor     structural,”          thereby

requiring a showing of “actual prejudice” to find that the error

affected substantial rights.                  United States v. White, 405 F.3d

208, 223 (4th Cir. 2005).                     Thus, the burden is on Byers to

establish       that       the      error     “affected        the     district        court’s

selection of the sentence imposed.”                     Id.

               Here, the record is entirely silent on this issue and

does not reveal a nonspeculative basis for concluding either

that (a) the district court was unaware that it possessed the

discretion to impose a shorter sentence or that (b) had it known

it possessed such discretion, it would have imposed a shorter

sentence.       In any event, Byers’ ultimate Guidelines range was

not determined by his drug quantity, but rather by his status as

an armed career criminal.                See United States v. Ogman, 535 F.3d

108, 111 (2d Cir. 2008) (clarifying that when “a district court

sentences      a     defendant       pursuant       to    a    Guidelines     range         that

results      from    his      status     as   a    career      offender,     and       without

reliance upon the Guidelines drug quantity table and the crack

to    powder    ratio      that     it   incorporates,         the    sentence     does     not

present      the     type      of    error     for       which    remand     .     .    .    is

appropriate”).         Therefore, because Byers cannot demonstrate that

the    district        court’s       failure       to    sua     sponte     consider        the

                                               4
crack/powder    disparity    affected   his   substantial    rights,   there

was no plain error.

           Based on the foregoing, we affirm Byers’ 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




                                    5
