                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 04-4290



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

          versus


RASHAAN CARDELL ROGERS,

                                              Defendant - Appellant.



         On Remand from the United States Supreme Court.
                       (S. Ct. No. 04-9515)


Submitted:   October 14, 2005          Decided:     November 29, 2005


Before NIEMEYER, MICHAEL, and DUNCAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant. Frank D. Whitney, United States Attorney, Anne M. Hayes,
Christine Witcover Dean, Assistant United States Attorneys,
Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

             On January 4, 2005, we affirmed Rashaan Cardell Rogers’

conviction.        See United States v. Rogers, No. 04-4290 (4th Cir.

Jan. 4, 2005) (unpublished).            On May 16, 2005, the Supreme Court of

the United States granted Rogers’ petition for writ of certiorari,

vacated this court’s judgment and remanded the case to this court

for further consideration in light of United States v. Booker, 125

S. Ct. 738 (2005).           After reconsideration, we affirm Rogers’

sentence     and     reinstate        our     earlier   opinion     affirming        his

conviction.

           On remand, Rogers argues that the district court violated

his Sixth Amendment rights by increasing his sentence under U.S.

Sentencing Guidelines Manual § 2K2.1(b)(4) (2003), on the basis of

facts found by a preponderance of the evidence.                  A Sixth Amendment

error   occurs      under   the   mandatory         guidelines    regime      when   the

district   court      imposes     a    sentence      greater     than   the    maximum

permitted based on facts found by a jury or admitted by the

defendant.     Booker, 125 S. Ct. at 756.                Because Rogers did not

raise a Sixth Amendment challenge in the district court, review is

for plain error.       United States v. Hughes, 401 F.3d 540, 547 (4th

Cir. 2005).

           Rogers was convicted of possession of a firearm by a

convicted felon. The district court determined that the firearm at

issue had an obliterated serial number and added two offense levels


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under USSG § 2K2.1(b)(4).         For purposes of determining Booker

error, we consider the guideline range based on facts found by the

jury before the reduction for acceptance of responsibility. United

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

the § 2K2.1(b)(4) enhancement and the acceptance of responsibility

reduction results in an offense level of 24, the identical offense

level under which Rogers was sentenced.              Accordingly, Rogers’

sentence did not exceed the maximum authorized based on facts

admitted or found by the jury and, therefore, did not violate the

Sixth Amendment.

            Next, Rogers contends that he was improperly sentenced

under a mandatory guideline system.           Because this claim was not

raised below, review is for plain error.           United States v. White,

405 F.3d 208, 215 (4th Cir. 2005).           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

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.         To make this showing, a

defendant    must   “demonstrate,    based    on   the   record,   that   the

treatment of the guidelines as mandatory caused the district court


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to impose a longer sentence than it otherwise would have imposed.”

Id. at 224.

           Here, the court imposed a sentence toward the high end of

the guidelines and did not make any further statements to 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 hold that Rogers cannot demonstrate that

the district court’s error in sentencing him under a mandatory

guidelines regime affected his substantial rights.                See United

States v. Olano, 507 U.S. 725, 734-35 (1993) (under plain error

test, defendant bears burden of proving that error affected his

substantial rights).

           Accordingly, we affirm Rogers’ sentence. In addition, we

reinstate our prior opinion affirming his conviction.             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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