                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 04-4805



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

          versus


LUCIANO ARGUETA-ROMERO,

                                              Defendant - Appellant.



Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. Frank W. Bullock, Jr.,
District Judge. (CR-04-121)


Submitted:   September 29, 2005           Decided:   October 5, 2005


Before WILKINSON, KING, and GREGORY, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Danielle Bess Obiorah, LAW OFFICES OF DANIELLE BESS OBIORAH, P.C.,
Charlotte, North Carolina, for Appellant.     Anna Mills Wagoner,
United States Attorney, Angela H. Miller, 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Unpublished opinions are not binding precedent in this circuit.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:

            Luciano Argueta-Romero appeals from his 78-month sentence

entered pursuant to his guilty plea to illegal re-entry by a

deported felon. On appeal, Argueta-Romero argues that the district

court erred in failing to treat the Sentencing Guidelines as

advisory and consider all factors of 18 U.S.C.A. § 3553(a) (West

2000 & Supp. 2005), in light of the Supreme Court’s decisions in

Blakely v. Washington, 542 U.S. 296 (2004) and United States v.

Booker, 125 S. Ct. 738 (2005).

            Argueta-Romero did not raise the sentencing issue at

trial, thus he must demonstrate plain error.               Fed. R. Civ. P.

52(b). To demonstrate plain error, a defendant must establish that

error occurred, that it was plain, and that it affected his

substantial rights.        United States v. Olano, 507 U.S. 725, 731-32

(1993); United States v. Hughes, 401 F.3d 540, 547-48 (4th Cir.

2005).    If a defendant establishes these requirements, the court’s

“discretion is appropriately exercised only when failure to do so

would    result   in   a   miscarriage   of   justice,   such   as   when   the

defendant is actually innocent or the error seriously affects the

fairness, integrity or public reputation of judicial proceedings.”

Hughes, 401 F.3d at 555 (internal quotation marks and citation

omitted).

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

this court determined that imposing a sentence under the guidelines


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as mandatory was error that was plain.                405 F.3d at 216-17.

However, the court in White then discussed the third prong of the

plain error analysis. In determining whether an error affected the

defendant’s substantial rights, the court reasoned that “the error

of sentencing a defendant under a mandatory guidelines regime” was

not an error for which prejudice would be presumed.           Id. at 219-20,

224.   Rather, the defendant bears the burden of showing that this

error prejudiced him, or “‘affected the outcome of the district

court proceedings.’”      Id. at 223 (quoting Olano, 507 U.S. at 734).

In making this determination, the court must consider the standard

in Kotteakos v. United States, 328 U.S. 750, 765 (1946):              “whether

‘after pondering all that happened without stripping the erroneous

action from the whole, . . . the judgment was . . . substantially

swayed by the error.’”        White, 405 F.3d at 223 (citations and

footnotes     omitted).      Here,   Argueta-Romero       provides    no    non-

speculative    basis   for   concluding      that   the   treatment    of    the

Guidelines as mandatory affected the selection of the sentence

imposed. The district court did not make any statements indicating

that it wished to impose a sentence below the guideline range and

in fact discussed that the mid-range sentence was appropriate

because Argueta-Romero had been in effect deported twice and that

the sentence was fair.

            We therefore conclude that Argueta-Romero did not carry

his burden and the sentence should be affirmed.             Accordingly, we


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affirm Argueta-Romero’s 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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