                              UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                              No. 03-4202



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

          versus


TREMAINE KENDRICK JETER, a/k/a Toby,

                                              Defendant - Appellant.


Appeal from the United States District Court for the District of
South Carolina, at Spartanburg. G. Ross Anderson, Jr., District
Judge. (CR-02-248)


Submitted:   August 3, 2005            Decided:   September 23, 2005


Before MOTZ and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


Thomas N. Cochran, Assistant Federal Public Defender, Greensboro,
North Carolina, for Appellant. Jonathan S. Gasser, Acting United
States Attorney, E. Jean Howard, 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Unpublished opinions are not binding precedent in this circuit.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:

                 Tremaine Kendrick Jeter appeals his conviction on a

guilty plea and sentence on a charge of conspiracy to possess with

intent to distribute crack cocaine, in violation of 18 U.S.C. § 846

(2000).      After conducting a thorough Fed. R. Crim. P. 11 colloquy,

the district court found Jeter guilty.           The probation officer who

prepared Jeter’s presentence investigation report (“PSR”) assigned

a total offense level to Jeter of thirty and a criminal history

category of V, with a resultant guideline range of 151-188 months’

imprisonment.        Jeter did not object at the sentencing hearing.         On

February 12, 2003, the district court sentenced Jeter in conformity

with       the    assignments   reflected   in   the   PSR   to   151   months’

imprisonment (the low end of the applicable guideline range), a

five-year term of supervised release, and ordered payment of a $100

special assessment.

                 Jeter’s sole issue on direct appeal1 is that his sentence

violates United States v. Booker, 125 S. Ct. 738 (2005), because at

the time of Jeter’s sentencing hearing there existed a disparity

between the sentence he faced and that faced by an allegedly


       1
      Jeter’s former appellate counsel filed a brief pursuant to
Anders v. California, 386 U.S. 738 (1967), on May 27, 2003. This
court, in an unpublished per curiam opinion filed on September 22,
2003, affirmed Jeter’s conviction and sentence. On September 16,
2004, Jeter filed a motion to recall the mandate. By Order dated
September 22, 2004, this court granted Jeter’s motion, recalled its
mandate, and vacated its opinion, based on a clerical error. This
court later appointed the Federal Public Defender as Jeter’s new
appellate counsel by Order dated October 1, 2004.

                                      - 2 -
equally culpable co-defendant, and that under pre-Booker circuit

precedent, the district court was prohibited from departing under

the mandatory guidelines based on such a disparity.2                   He alleges

that he was prejudiced by the district court’s plain error in

failing to consider the provisions of 18 U.S.C. § 3553(a) before

imposing sentence and in treating the guidelines as mandatory.                  He

seeks resentencing.       We find no merit to Jeter’s specific claim on

appeal.

              Jeter’s contention that the district court erred by

sentencing     him    under   an   unconstitutional       mandatory    sentencing

scheme is governed by United States v. Booker, 125 S. Ct. 738

(2005), in which the Supreme Court held that Blakely v. Washington,

542 U.S. 296 (2004), applies to the federal sentencing guidelines

and   that    the    mandatory     guidelines    scheme     which   provided   for

sentence enhancements based on facts found by the court violated

the   Sixth    Amendment.        Booker,   125   S.   Ct.    at   746-48,   755-56

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

(Breyer, J., opinion of the Court). Subsequently, in United States


      2
      Jeter’s guidelines sentence was not determined by any facts
not found beyond a reasonable doubt; therefore, his sentence does
not implicate any violation of the Sixth Amendment.      His only
objection is to the district court’s mandatory use of the
guidelines in determining his sentence.

                                       - 3 -
v. Hughes, 401 F.3d 540 (4th Cir. 2005), this court held that a

sentence imposed under the pre-Booker mandatory sentencing scheme

and 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 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.

              Booker states that, in reviewing sentences that do not

involve a Sixth Amendment violation, appellate courts may apply the

plain error and harmless error doctrines in determining whether

resentencing is required.         Booker, 125 S. Ct. at 769; see Fed. R.

Crim. P. 52(a) (appellate court may disregard any error that does

not affect substantial rights).              Because Jeter did not raise

sentencing objections before the district court, this court reviews

his arguments for plain error.           To establish plain error:       (1)

there must be an error; (2) the error must be plain; and (3) the

error must affect substantial rights.          United States v. Olano, 507

U.S. 725, 732-34 (1993).         If the three elements of the plain error

standard are met, this court may exercise its discretion to notice

error only if the error seriously affects “the fairness, integrity,

or   public    reputation   of    judicial    proceedings.”   Id.   at   736

(citation omitted).




                                     - 4 -
          Under this standard, although Jeter is correct that the

district court committed error in treating the guidelines as

mandatory, see Hughes, 401 F.3d at 547-48,3 we find that he is not

entitled to relief.     We recently held that in a plain error

context, the error of sentencing under the mandatory guidelines

regime did not warrant a presumption of prejudice nor was it a

structural error.   United States v. White, 405 F.3d 208, 224 (4th

Cir. 2005). Rather, because Jeter failed to object to his sentence

below, the burden is on him to establish prejudice.   Id. at 223.

Moreover, to establish prejudice in the context of plain error

under White, Jeter must demonstrate a nonspeculative basis in this

record for concluding the district court would have sentenced him

to a lesser sentence if the sentencing guidelines were advisory.

          While Jeter contends that had the district court been

free to consider the § 3553(a) factors, there was a “substantial

likelihood” that the district court would have sentenced him based

on an offense level of twenty-six, like his similarly situated co-

defendant, rather than at a level of thirty, and that it sentenced

him to a longer sentence than it “may” have if the guidelines were

not mandatory, there is no statement by the district court in the

record to support such a speculative and conclusory argument.   The


     3
      See also United States v. White, 405 F.3d 208, 216-17 (4th
Cir. 2005) (“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
[plain] error”).

                              - 5 -
fact of the matter is that Jeter and his co-defendant were not

similarly situated, because Jeter initially declined the plea

originally offered by the Government which contained a base offense

level stipulation of twenty-six and his co-defendant did not.4

Jeter’s ultimate decision to take a different, less favorable,

offer from the Government, resulting in a higher base offense level

alone puts him in a different situation than that of his co-

defendant, even assuming they were equally criminally culpable, as

Jeter contends.

           As nothing in the record suggests the error affected the

court’s ultimate determination of Jeter’s sentence, and because the

burden of so proving lies with Jeter, see White, 405 F.3d at 223,

Jeter cannot satisfy the prejudice requirement of the plain error

standard and hence cannot establish that the district court’s error

in   sentencing   him   pursuant    to    a    mandatory       guidelines     scheme

affected   his    substantial      rights      such     that    resentencing     is

necessary. Accordingly, we affirm Jeter’s conviction 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


      4
      Jeter asserts that he was following the ill-advised
recommendation of a jail-house lawyer with whom he was housed at
the time when he turned down the Government’s initial plea offer.

                                    - 6 -
