                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 06-4497



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

          versus


SHONTE L. DAVIS,

                                              Defendant - Appellant.



Appeal from the United States District Court for the Southern
District of West Virginia, at Charleston. John T. Copenhaver, Jr.,
District Judge. (2:03-cr-00238)


Submitted:   October 27, 2006          Decided:     November 13, 2006


Before WILKINSON, NIEMEYER, and GREGORY, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Carl J. Dascoli, Jr., MICHAEL R. CLINE LAW OFFICES, Charleston,
West Virginia, for Appellant. Charles T. Miller, United States
Attorney, W. Chad Noel, Assistant United States Attorney,
Charleston, West Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

           Shonte L. Davis pled guilty to distributing cocaine base,

in violation of 21 U.S.C. § 841(a)(1) (2000).         He was sentenced to

108 months’ imprisonment.       This sentence was imposed prior to the

Supreme Court’s opinion in United States v. Booker, 543 U.S. 220

(2005).   The district court granted Davis’ 28 U.S.C. § 2255 (2000)

motion, in which Davis claimed his trial counsel failed to file a

notice of appeal despite instructions to do so.                Vacating the

original criminal judgment, the district court noted “the sentence

heretofore imposed is in all respects the same sentence the court

would have imposed in light of [Booker] and the factors specified”

in   Booker.     The   court   then    reentered   judgment,   imposing    an

identical term of 108 months’ imprisonment, at the top of the

sentencing     guidelines   range.      Davis   appealed,   contending    the

reentry of judgment violated Booker because it deprived him of the

opportunity to be sentenced under an advisory sentencing guidelines

regime.   We affirm.

           Under Booker, when a defendant is sentenced under a

mandatory guidelines scheme, “[a]ny fact (other than a prior

conviction) which is necessary to support a sentence exceeding the

maximum authorized by the facts established by a plea of guilty or

a jury verdict must be admitted by the defendant or proved to a

jury beyond a reasonable doubt.” Booker, 543 U.S. at 224.             Thus,

error under the Sixth Amendment occurs when the district court


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imposes a sentence greater than the maximum permitted based on

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

Subsequently, in United States v. Hughes, 401 F.3d                      540 (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 found by a jury or 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 this case, the district court’s post-Booker reentry of

judgment clearly indicates what sentence it would have imposed

under an advisory guideline scheme.                 Although we detect no Sixth

Amendment error at Davis’ original, pre-Booker sentencing, any such

error was harmless.         See United States v. Shatley, 448 F.3d 264,

267 (4th Cir. 2006), cert. denied, ___ U.S. ___, 2006 WL 2378138

(U.S. Oct. 2, 2006) (No. 06-227).              Further, the district court is

presumed to have properly considered the 18 U.S.C.A § 3553(a) (West

2000 & Supp. 2005) sentencing factors, as required by Hughes,

United States v. Green, 436 F.3d 449 (4th Cir.), cert. denied, 126

S. Ct. 2309 (2006), and United States v. Moreland, 437 F.3d 424

(4th Cir.), cert. denied, 126 S. Ct. 2054 (2006).                 See Shatley, 448

F.3d at 268.


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          Davis’ sentence, which is below the statutory maximum and

within the properly calculated guidelines range, “is presumptively

reasonable.”   See Green, 436 F.3d at 457 (citations omitted).

Accordingly, we affirm Davis’ 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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