                               UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                               No. 05-4141



UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

          versus


ANTOINE GRACIUS, a/k/a Julian, a/k/a Antoine
Gracias,

                                              Defendant - Appellant.



Appeal from the United States District Court for the Middle
District of North Carolina, at Salisbury. William L. Osteen,
District Judge. (CR-97-114)


Submitted:   August 31, 2005            Decided:   September 22, 2005


Before WILLIAMS, KING, and DUNCAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


David B. Freedman, WHITE & CRUMPLER, Winston-Salem, North Carolina,
for Appellant.     Anna Mills Wagoner, United States Attorney,
Clifton T. Barrett, Assistant United States Attorney, Greensboro,
North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

           Antoine Gracius pled guilty to conspiracy to distribute

fifty grams or more of cocaine base (crack), 21 U.S.C. § 846

(2000),   and   received   a   sentence    of   168   months   imprisonment.

Gracius appeals his sentence,* contending that he is entitled to be

resentenced in light of United States v. Booker, 125 S. Ct. 738

(2005), because the district court plainly erred in sentencing him

under a mandatory guideline sentencing scheme.           We affirm.

           In Booker, the Supreme Court held that the mandatory

guidelines scheme that provided for sentence enhancements based on

facts found by the court violated the Sixth Amendment. Booker, 125

S. Ct. at 746-48, 755-56.       The Court remedied the constitutional

violation by severing and excising the statutory provisions that

mandate sentencing and appellate review under the guidelines, thus

making the guidelines advisory.      Id. at 756-57.



     *
      Gracius’ first pro se appeal was dismissed as untimely.
Gracius then filed a motion to vacate under 28 U.S.C. § 2255
(2000), alleging that his attorney failed to file a notice of
appeal as he requested. Relief was granted under United States v.
Peak, 992 F.2d 39, 42 (4th Cir. 1993) (failure to note requested
appeal is denial of Sixth Amendment right to assistance of
counsel). However, due to a clerical error, the amended judgment
order entered in October 2001 was not sent to Gracius’ attorney and
he again failed to perfect an appeal.      In 2002, Gracius filed
another § 2255 motion seeking to set aside the judgment.        The
district court found that relief was warranted and entered a second
amended judgment on January 11, 2005. Because the district court
granted Gracius’ original § 2255 motion and reentered judgment to
permit a direct appeal, the next § 2255 motion was not a second or
successive motion within the meaning of § 2255. In re Goddard, 170
F.3d 435 (4th Cir. 1999).

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            Subsequently, in United States v. Hughes, 401 F.3d 540,

546 (4th Cir. 2005), we held that a sentence that was imposed under

the pre-Booker mandatory sentencing scheme and was enhanced based

on facts found by the court, not by a jury (or, in a guilty plea

case, admitted by the defendant), constitutes plain error.     That

error affects the defendant’s substantial rights and warrants

reversal under Booker when the record does not disclose what

discretionary sentence the district court would have imposed under

an advisory guideline scheme.    Hughes, 401 F.3d at 546-56.

            In United States v. White, 405 F.3d 208 (4th Cir. 2005),

we held that treating the guidelines as mandatory was plain error

in light of Booker, id. at 216-17, but we declined to presume

prejudice.    Id. at 217-22.   We held that the “prejudice inquiry,

therefore, 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

(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.   When “the record as a whole provides 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


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States, 503 U.S. 193, 203 (1992)), the error did not affect the

defendant’s substantial rights.       Id. at 225 (affirming sentence);

see United States v. Collins, 412 F.3d 515, 524-25 (4th Cir. 2005)

(finding that defendant failed to demonstrate prejudice from being

sentenced under mandatory sentencing guidelines).

            Here, the district court made no fact findings that

increased Gracius’ sentence beyond those facts he admitted by

stipulating that he was responsible for more than 1.5 kilograms of

crack.    Therefore, no Sixth Amendment violation occurred.             The

court    imposed   Gracius’   sentence   under   a   mandatory   sentencing

guidelines scheme, which was plain error.             White, 405 F.3d at

216-17.    However, because the record contains no nonspeculative

basis on which this court could conclude that the district court

would have sentenced Gracius to a lesser sentence had the court

proceeded under an advisory guideline scheme, Gracius has failed to

demonstrate    that   the   plain   error   in   sentencing   him   under   a

mandatory guidelines scheme affected his substantial rights.

            We therefore affirm the sentence imposed by the district

court.    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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