                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 03-4820



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

          versus


TIMOTHY EARL BROWN,

                                              Defendant - Appellant.


         On Remand from the United States Supreme Court.
                       (S. Ct. No. 04-5614)


Submitted:   January 13, 2006          Decided:     February 16, 2006


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


Affirmed by unpublished per curiam opinion.


Ray Coit Yarborough, Jr., LAW OFFICE OF COIT YARBOROUGH, Florence,
South Carolina, for Appellant. Jonathan S. Gasser, United States
Attorney, Regan A. Pendleton, Assistant United States Attorney,
Greenville, South Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

           Timothy Earl Brown’s conviction was affirmed July 9,

2003.   See United States v. Brown, No. 02-4741, 2003 WL 21541050

(4th Cir. July 9, 2003) (unpublished).          We remanded the sentence

for the limited purpose of allowing the district court to consider

post-offense rehabilitation in imposing a sentence.          After remand,

the   district   court   imposed   the   same   135-month   sentence.    We

affirmed. See United States v. Brown, No. 03-4820, 2004 WL 1053225

(4th Cir. May 11, 2004) (unpublished).          By order entered January

24, 2005, the United States Supreme Court granted certiorari,

vacated this court’s decision and remanded for further proceedings

in light of United States v. Booker, 543 U.S. 220 (2005).

           Brown’s sentence was based upon a mandatory application

of the sentencing guidelines in which the district court made

certain findings of fact.     Brown’s offense level was based upon a

quantity of crack cocaine, a quantity of marijuana and possession

of a firearm.    The offense level was reduced as a result of Brown’s

acceptance of responsibility.        The amount of crack cocaine for

which Brown was found accountable is not being challenged.              The

amount of marijuana has no actual bearing on the offense level

given the amount of crack cocaine.         With respect to the challenged

increase to the offense level for possession of a firearm, a fact

not admitted by the defendant nor found beyond a reasonable doubt,

we find no Sixth Amendment violation.           In addition, we find no


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plain error as a result of the mandatory application of the

guidelines.

             Brown was sentenced before the Supreme Court decided

Blakely v. Washington, 542 U.S. 296 (2004), or Booker (holding that

Blakely    applied    to    federal   sentencing      guidelines).          We   have

identified two types of Booker error:              a violation of the Sixth

Amendment, and a failure to treat the sentencing guidelines as

advisory.    United States v. Hughes, 401 F.3d 540, 552-53 (4th Cir.

2005).     A Sixth Amendment error occurs when the district court

imposes a sentence greater than the maximum permitted based on

facts found by a jury or admitted by the defendant.                Id. at 546.

            Brown did not allege in the district court a Sixth

Amendment    error     or    an   error   with   respect    to   the    mandatory

application of the guidelines.             Therefore, review is for plain

error.    Id. at 547.       To demonstrate plain error, an appellant must

establish an error occurred, it was plain, and it affected his

substantial rights.         Id. at 547-48.       If an appellant meets these

requirements, the court’s “discretion is appropriately exercised

only when failure to do so would result in a miscarriage of

justice, such as when the defendant is actually innocent or the

error     seriously    affects     the    fairness,    integrity       or    public

reputation    of     judicial     proceedings.”       Id.   at   555    (internal

quotation marks and citation omitted).




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             For the purpose of this appeal, we assume the two-level

enhancement for possession of a firearm was not admitted by Brown

or proven beyond a reasonable doubt.              If the two points for the

possession were removed from the offense level, Brown’s offense

level before factoring acceptance of responsibility would have been

32.1       For   purposes   of   determining     Booker   error,   we    use   the

guideline range based on the facts the defendant admitted before

the range was adjusted downward for acceptance of responsibility.

United States v. Evans, 416 F.3d 298, 300 n.4 (4th Cir. 2005).

Brown’s guideline range under this analysis would have been 151-188

months’ imprisonment. Brown’s 135 month sentence is less than that

authorized by the guidelines without consideration of the firearm.

Thus, no Sixth Amendment error occurred.

             Brown    cannot     show    plain    error   in    the     mandatory

application of the guidelines. In United States v. White, 405 F.3d

208, 216-17 (4th Cir.), cert. denied, 126 S. Ct. 668 (2005), we

reviewed for plain error where the mandatory application of the

guidelines was not raised in the district court.               We held treating

the guidelines as mandatory was plain error in light of Booker, id.

at 216-17, and declined to presume prejudice, id. at 217-22,

holding the “prejudice inquiry, therefore, is . . . whether after

pondering all that happened without stripping the erroneous action


       1
      The offense level for drug quantity was 32 whether or not the
marijuana was factored into the calculation. See U.S. Sentencing
Guidelines Manual § 2D1.1 (2001).

                                        - 4 -
from the whole, . . . the judgment was . . . substantially swayed

by the error.”    Id. at 223 (internal quotation marks and citations

omitted).    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.   Because “the

record as a whole provide[d] no 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))

(first alteration added), we concluded the error did not affect the

defendant’s substantial rights and affirmed the sentence.         Id. at

225; see also United States v. Collins, 412 F.3d 515, 524-25 (4th

Cir. 2005) (finding defendant failed to demonstrate prejudice from

being sentenced under mandatory sentencing guidelines).

            Similarly, we find Brown has not shown a nonspeculative

basis on which we could conclude the district court would have

sentenced him differently had the guidelines been advisory instead

of   mandatory.     Accordingly,   Brown   cannot   demonstrate    that

application of the guidelines as mandatory affected his substantial

rights.




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          We affirm the sentence.2    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




     2
      Brown’s remaining arguments are beyond the scope of the
Supreme Court’s order and are not reviewable by this court.

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