                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 07-4411



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

          versus


DAWSON WILLIAM MONGOLD,

                                              Defendant - Appellant.


Appeal from the United States District Court for the Northern
District of West Virginia, at Martinsburg. Irene M. Keeley, Chief
District Judge. (3:04-cr-00009-WCB)


Submitted:   November 21, 2007         Decided:     December 11, 2007


Before NIEMEYER, MICHAEL, and MOTZ, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Arthur H. Baker, III, LAW OFFICE OF ARTHUR H. BAKER, III,
Pittsburgh, Pennsylvania, for Appellant. Sharon L. Potter, United
States Attorney, Thomas O. Mucklow, Assistant United States
Attorney, Martinsburg, West Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

           Dawson William Mongold pled guilty pursuant to a plea

agreement to three counts of distribution of cocaine base, in

violation of 21 U.S.C.A. § 841(a)(1) (West 1999 & Supp. 2007).            As

part of his plea, he stipulated he was responsible for at least 500

grams of cocaine base or crack cocaine. Mongold’s guidelines range

of imprisonment was based upon his stipulation and his acceptance

of responsibility. He was sentenced to 188 months’ imprisonment or

the low end of the then mandatory sentencing guidelines. Mongold’s

counsel did not file an appeal.             Subsequently, Mongold filed a

motion   under   28   U.S.C.   §   2255   (2000),   claiming   counsel   was

ineffective for not filing a notice of appeal.         The district court

agreed with Mongold and granted his motion.             The court held a

resentencing for the purpose of reentering the judgment so Mongold

can file a timely notice of appeal.            At the hearing, the court

ordered the same sentence and declined to consider Mongold’s other

challenges to his original sentence or to consider sentencing

Mongold under the rules announced in United States v. Booker, 543

U.S. 220 (2005).      On appeal, Mongold claims the court erred by not

having a de novo sentencing proceeding. Mongold further claims the

court erred by not sentencing him pursuant to the rules announced

in Booker.    Finding no error, we affirm.

           The form of relief awarded by the district court in a

successful § 2255 proceeding is reviewed for abuse of discretion.


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United States v. Hadden, 475 F.3d 652, 667 (4th Cir. 2007).

District courts are given a “broad and flexible power . . .     to

fashion an appropriate remedy.” United States v. Hillary, 106 F.3d

1170, 1171 (4th Cir. 1997) (internal quotation marks omitted).

When a movant in a § 2255 proceeding is successful in his claim

that he received ineffective assistance of counsel because counsel

did not file a requested notice of appeal, “the ‘standard practice

among federal courts’ in this situation: vacatur of the sentence

and summary imposition of a new sentencing judgment identical in

all respects to the earlier one except for the date of entry.”

United States v. Torres-Otero, 232 F.3d 24, 29 (1st Cir. 2000)

(quoting Pratt v. United States, 129 F.3d 54, 62 (1st Cir. 1997)).

See also United States v. Shedrick, 493 F.3d 292, 303 (3d Cir.

2007) (the “usual course in cases of this nature:       vacate and

remand for re-entry of the initial sentence so that there can be a

timely appeal.”); United States v. Snitz, 342 F.3d 1154, 1159 (10th

Cir. 2003) (directing “district court to vacate and reenter its

judgment of conviction and sentence to allow defendant to file a

timely appeal”); United States v. West, 240 F.3d 456, 459 (5th Cir.

2001) (“When leave to file an out-of-time appeal is granted, the

district court should reinstate the criminal judgment to trigger

the running of a new Rule 4(b) appeal period.”) (emphasis in

original);   United States v. Prado, 204 F.3d 843, 845 (8th Cir.

2000).   A defendant is not entitled to de novo resentencing when


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the “defendant has been unconstitutionally deprived of appellate

review due to ineffective assistance of counsel.”     Prado, 204 F.3d

at 845. see also United States v. Phillips, 225 F.3d 1198, 1200-01

(11th Cir. 2000) (setting forth procedure for reimposing judgment

when right to appeal has been denied); cf. United States v. Peak,

992 F.2d 39, 42 (4th Cir. 1993) (in § 2255 appeal where criminal

defense attorney failed to file a notice of appeal though requested

to do so, court vacated and instructed district court      “to vacate

Peak’s judgment of conviction and enter a new judgment from which

an appeal can be taken.”).

          We find the district court did not abuse its discretion

by re-entering the judgment with the purpose of allowing Mongold to

file a timely notice of appeal without considering Mongold’s other

attacks on his sentence.

          We further find Mongold’s sentence does not violate the

rules announced in Booker.   In Booker, the Supreme Court held that

the mandatory manner in which the federal sentencing guidelines

required courts to impose sentencing enhancements based on facts

found by the court by a preponderance of the evidence violated the

Sixth Amendment.   125 S. Ct. at 746, 750 (Stevens, J., opinion of

the Court).   This court has 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 (4th Cir. 2005).   A Sixth Amendment error occurs when


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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.            While the mandatory

application of the guidelines constitutes plain error, United

States v. White, 405 F.3d 208, 217 (4th Cir. 2005), a defendant who

seeks re-sentencing on this ground must show actual prejudice,

i.e., a “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)).

            For purposes of determining Booker error, this court

considers the guideline range based on the facts the defendant

admitted before any adjustment for acceptance of responsibility.

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

Mongold’s guidelines range of imprisonment was determined solely on

his agreement that he was responsible for at least 500 grams of

cocaine. Mongold’s unenhanced offense level, without consideration

for acceptance of responsibility, was thirty-six.                  With criminal

history category IV, the guideline range would have been 262 to 327

months’ imprisonment. Mongold’s sentence was lower than that range

as    a   result    of    him   receiving     credit    for       acceptance   of

responsibility.          Thus, Mongold cannot show error.                Moreover,

nothing in the current record on appeal suggests the district court

would have given him a lower sentence if the guidelines were not


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mandatory.    Therefore, Mongold has not established error that

warrants re-sentencing under White, 405 F.3d at 223.

          Accordingly, we affirm the 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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