                              UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                              No. 03-4617



UNITED STATES OF AMERICA,

                                                 Plaintiff - Appellee,

          versus


WILLIE LAWSON,


                                                Defendant - Appellant.



Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Alexander Williams, Jr., District Judge.
(CR-02-215)


Submitted:   August 1, 2005                 Decided:   November 9, 2005


Before NIEMEYER, WILLIAMS, and GREGORY, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Joseph R. Conte, LAW OFFICES OF JOSEPH R. CONTE, P.L.L.C.,
Washington, D.C., for Appellant. Thomas M. DiBiagio, United States
Attorney, Mythili Raman, Assistant United States Attorney,
Greenbelt, Maryland, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Willie Lawson appeals his convictions and 684-month (57-

year) sentence for conspiracy to commit armed bank robbery in

violation of 18 U.S.C. § 371 (2000), two counts of armed bank

robbery in violation of 18 U.S.C. §§ 2, 2113(a), (d) (2000), and

two counts of using or carrying a firearm during or in relation to

a crime of violence in violation of 18 U.S.C. § 924(c) (West 2000

& Supp. 2005).     For the reasons that follow, we affirm Lawson’s

convictions and sentence.

            Lawson first argues that the district court erred in

denying his motion to dismiss the indictment in which he asserted

that this indictment charged him with the same conspiracy charge

for which he was convicted in the Eastern District of Virginia.

Applying the factors set forth in United States v. MacDougall, 790

F.2d 1135, 1144 (4th Cir. 1986), and considering the totality of

the circumstances, we find that the evidence actually used to

prosecute the earlier conspiracy offense would not be sufficient to

convict Lawson of the conspiracy charged in the instant case.

Therefore, the underlying prosecution does not violate double

jeopardy.     See United States v. Ragins, 840 F.2d 1184, 1188 (4th

Cir. 1988).

            The next issue presented on appeal is Lawson’s challenge

to the sufficiency of the evidence to support his convictions for

using and carrying a firearm.     Viewing the evidence in the light


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most favorable to the government, see Glasser v. United States, 315

U.S. 60, 80 (1942), we find that the evidence was sufficient both

as to Lawson’s identity and to his use of a firearm.     See United

States v. Redd, 161 F.3d 793, 797 (4th Cir. 1998); United States v.

Jones, 907 F.2d 456, 460 (4th Cir. 1990).    Accordingly, we affirm

the district court’s denial of Lawson’s motion for judgment of

acquittal.     See United States v. Wilson, 118 F.3d 228, 234 (4th

Cir. 1997) (providing standard).

            Next, Lawson contends that the district court erred in

denying his motion to dismiss the indictment based on alleged

violations of Fed. R. Crim. P. 5 and 40.     Lawson asserts that he

was improperly taken to a magistrate judge in Virginia following

his arrest in the District of Columbia on a warrant issued in

Virginia.     Rules 5(a) and 40(a) of the Federal Rules of Criminal

Procedure in effect at the time of Lawson’s arrest on the Virginia

charge required that anyone arrested in a district other than that

in which the offense was allegedly committed be taken “without

unnecessary delay before the nearest available federal magistrate

judge.”     Fed. R. Crim. P. 5(a), 40(a).   Where the alleged delay

does not result in unwarranted interrogation, no prejudice results,

and any violation of Rule 5(a) does not require dismissal of the

indictment.    See United States v. Neiswender, 590 F.2d 1269, 1271-

72 (4th Cir. 1979); Tarkington v. United States, 194 F.2d 63, 67-68

(4th Cir. 1952).    Because Lawson does not allege any prejudice to


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the underlying case from the alleged violations in his prosecution

in the Virginia case, we uphold the district court’s denial of his

motion to dismiss the indictment.            To the extent that Lawson

asserts that the violations of Rule 5 and 40 in the Virginia

prosecution denied him a speedy trial in this prosecution, we find

no merit to that claim.         See 18 U.S.C.A. 3161(c)(1) (West Supp.

2005).

              Lawson next challenges the district court’s imposition of

a   25-year    sentence   on   his   conviction   on   count   three   of   the

indictment, the first § 924(c) count. He asserts that, because his

§ 924(c) conviction in the Virginia case was not final,* it could

not be treated as a prior conviction at sentencing in the Maryland

case.       We agree with the district court that the fact that the

prior conviction was on appeal did not preclude the application of

the enhanced penalty provision.          See Deal v. United States, 508

U.S. 129, 132 (1993); United States v. Neal, 976 F.2d 601, 602-03

(4th Cir. 1992).

              In a supplemental brief, Lawson challenges his sentence

on the bank robbery offenses. First, he contends that his sentence

was enhanced based on judicial fact-finding, in violation of his

Sixth Amendment rights.        However, because the sentence imposed did

not exceed the maximum sentence authorized by the jury’s verdict


        *
      A petition for certiorari was pending in the Supreme Court on
the date of Lawson’s sentencing in the Maryland case. The Supreme
Court denied certiorari on October 6, 2003.

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alone, see United States v. Evans, 416 F.3d 298, 300-01 & n.4 (4th

Cir. 2005), there was no error, much less plain error.                          United

States v. Hughes, 401 F.3d 540, 547-48 (4th Cir. 2005) (providing

for plain error review when issue raised for first time on appeal).

              Lawson also asserts that he was sentenced under the

federal   Sentencing      Guidelines      and     that        the   Guidelines     are

unconstitutional after Blakely v. Washington, 542 U.S. 296 (2004).

In United States v. Booker, 125 S. Ct. 738 (2005), the Supreme

Court   held    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.                       Id. at 746, 750

(Stevens, J., opinion of the Court).                The Court remedied the

constitutional violation by severing two statutory provisions, 18

U.S.C.A. § 3553(b)(1) (West Supp. 2005) (requiring courts to impose

a sentence within the applicable guideline range), and 18 U.S.C.A.

§   3742(e)    (West   2000   &   Supp.   2005)    (setting         forth   appellate

standards of review for guideline issues), thereby making the

Guidelines advisory.         Hughes, 401 F.3d at 546 (citing Booker, 125

S. Ct. at 757, 764 (Breyer, J., opinion of the Court)).

              Although it was error for Lawson to be sentenced under

the Guidelines as mandatory, he has failed to show that this error

affected his substantial rights.          See United States v. White, 405

F.3d 208, 223 (4th Cir. 2005) (holding that defendant bears burden


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of showing that error “‘affected the outcome of the district court

proceedings’” (quoting United States v. Olano, 507 U.S. 725, 734

(1993))).    Our review of the record “provides no nonspeculative

basis for concluding that the treatment of the [G]uidelines as

mandatory   ‘affect[ed]   the    district     court’s    selection    of   the

sentence imposed.’”     White, 405 F.3d at 223 (quoting Williams v.

United States, 503 U.S. 193, 203 (1992) (alteration in original)).

Because we find that Lawson has failed to show that his substantial

rights were affected by the district court’s error in imposing a

sentence under the Guidelines as mandatory, we affirm Lawson’s

sentence.    See White, 405 F.3d at 224-25; Fed. R. Crim. P. 52(b);

Olano, 507 U.S. at 735, 737.

            In   conclusion,    we   affirm   Lawson’s    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




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