                             UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                             No. 07-4090



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

          versus


ROCKY ALAN VANBUREN,

                                              Defendant - Appellant.


Appeal from the United States District Court for the Eastern
District of Virginia, at Newport News. Henry Coke Morgan, Jr.,
Senior District Judge. (4:98-cr-00023-HCM))


Submitted:   July 25, 2007                 Decided:   August 8, 2007


Before MICHAEL and KING, Circuit Judges, and WILKINS, Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


Nathaniel Jarrett Webb, III, Newport News, Virginia, for Appellant.
Chuck Rosenberg, United States Attorney, Richard D. Cooke, William
D. Muhr, Assistant United States Attorneys, Tiffany T. Crawford,
Third Year Law Student, Norfolk, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

           Rocky Alan VanBuren was convicted in 1998 by a jury for

possession with intent to distribute more than fifty grams of

cocaine base, in violation of 21 U.S.C. § 841(a)(1) (2000).              He was

sentenced to 168 months of imprisonment.             In 2005, VanBuren filed

a post-judgment motion alleging, inter alia, that counsel had been

ineffective in failing to file a timely notice of appeal as

requested. The court granted relief on this ground under 28 U.S.C.

§ 2255 (2000), vacated VanBuren’s sentence, and imposed the same

sentence in the judgment order, thereby allowing VanBuren an

opportunity to file a timely notice of appeal. On appeal, VanBuren

argues that his sentence violates United States v. Booker, 543 U.S.

220 (2005), that his counsel was ineffective, and that the district

court abused its discretion in limiting defense counsel’s cross-

examination of one of the Government’s witnesses.              We affirm.

           On   appeal,      VanBuren    maintains    that   his   post-Booker

sentence   is   unreasonable.       Specifically,      he    claims    that   the

district court, in granting post-conviction relief, violated Booker

by   imposing   the   same    sentence    without    conducting    a   hearing,

treating the sentencing guidelines as advisory, and considering the

factors enumerated in 18 U.S.C.A. § 3553(a) (West 2000 & Supp.

2007), as required under Booker.         VanBuren also posits a different

but related argument claiming that his pre-Booker sentence is

unreasonable because the court treated the guidelines as mandatory


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and failed to adequately consider the factors under § 3553(a).

Although    VanBuren   predominantly     challenges       his   sentence    on

reasonableness   grounds,   he   briefly   asserts    a    Sixth   Amendment

argument.

            After Booker, a district court is no longer bound by the

range prescribed by the Sentencing Guidelines.             United States v.

Hughes, 401 F.3d 540, 546 (4th Cir. 2005).      However, in imposing a

sentence post-Booker, courts still must calculate the applicable

Guidelines range after making the appropriate findings of fact and

consider the range in conjunction with other relevant factors under

the Guidelines and § 3553(a).     United States v. Moreland, 437 F.3d

424, 432 (4th Cir.), cert. denied, 126 S. Ct. 2054 (2006).                 This

court will affirm a post-Booker sentence if it “is within the

statutorily prescribed range and is reasonable.”                 Id. at 433

(internal quotation marks and citation omitted).

            As a threshold matter, VanBuren improperly treats the

district court’s reentry of judgment as substantive proceedings

subject to challenge under Booker.         Clearly, the district court

vacated VanBuren’s sentence and reimposed the same sentence in

order to reinstate his direct appeal rights.         Because VanBuren was

effectively sentenced pre-Booker, the reasonableness standard of

review is inapplicable. See United States v. Hadden, 475 F.3d 652,

667-69 (4th Cir. 2007) (holding that a court is free to merely




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“correct” a prisoner’s sentence without the need for a formal

resentencing).

           In reviewing VanBuren’s 1998 sentencing proceedings on

constitutional and statutory grounds under Booker, because he made

no objection to his sentence calculation in the district court, the

claims are reviewed for plain error.         United States v. Olano, 507

U.S. 725, 732-37 (1993);      Hughes, 401 F.3d at 547-48.        Under the

plain error standard, VanBuren must show: (1) there was error; (2)

the error was plain; and (3) the error affected his substantial

rights.   Olano, 507 U.S. at 732-34.       Even when these conditions are

satisfied, this court may exercise its discretion to notice the

error   only   if   the   error   “seriously   affect[s]   the   fairness,

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

736 (internal quotation marks omitted).

           Here, the indictment specifically charged VanBuren with

possession with intent to distribute in excess of fifty grams of

cocaine base.       His offense level was determined solely by the

guideline dictating an offense level of thirty-two if the defendant

was responsible for at least fifty grams but less than 150 grams of

cocaine base, see U.S. Sentencing Guidelines Manual § 2D1.1(c)(4)

(1997). No enhancements were made to VanBuren’s sentence. Because

the court made no findings that increased VanBuren’s sentence

beyond what it would be based only on facts found by the jury, no

Sixth Amendment violation occurred.


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              Nor can VanBuren demonstrate any prejudice from the

mandatory application of the Guidelines.                   In United States v.

White, 405 F.3d 208 (4th Cir. 2005), this court determined that,

“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 error” that is

plain.   Id. at 216-17.         The court also concluded that, to satisfy

the   third    prong     of   the   plain     error   test,    an    appellant      must

demonstrate actual prejudice.               Id. at 217-24.          White could not

satisfy this requirement, however, because he could not establish

that the application of the Guidelines as mandatory had an effect

on “‘the district court’s selection of the sentence imposed.’” Id.

at 223 (quoting Williams v. United States, 503 U.S. 193, 203

(1992)).        In   this     case,    the     record    does       not   reveal     any

nonspeculative basis to indicate that the district court would have

imposed a lesser sentence by treating the Guidelines as advisory.

VanBuren therefore cannot demonstrate that the district court’s

error in sentencing him pursuant to a mandatory guidelines scheme

affected his substantial rights.

              VanBuren    also      alleges    on     appeal    that      counsel   was

ineffective in (1) failing to pursue a guilty plea which would have

resulted      in     a    three-point        reduction     for       acceptance       of

responsibility; (2) failing to present evidence controverting the

Government’s allegations; (3) failing to contest the results of the


                                        - 5 -
laboratory report; and (4) compelling VanBuren to become a witness

against himself.        This court “may address [claims of ineffective

assistance of counsel] on direct appeal only if the lawyer’s

ineffectiveness conclusively appears from the record.”               United

States v. Baldovinos, 434 F.3d 233, 239 (4th Cir.), cert. denied,

126   S.   Ct.   1407   (2006).    Because    we   find   that   ineffective

assistance of counsel does not conclusively appear on the record,

we do not address these claims.

            Last, VanBuren argues that the district court erred in

limiting cross-examination of the Government’s chain-of-custody

witness concerning the witness’s placement on administrative leave.

This court reviews evidentiary rulings for an abuse of discretion.

United States v. Cooper, 482 F.3d 658, 662-63 (4th Cir. 2007).            We

have reviewed the record and find no abuse of discretion.

            Accordingly,     we   affirm     VanBuren’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




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