                               UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                               No. 06-5172


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

           v.

WILLIAM HARRIS TAFT, JR.,

                Defendant – Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte.   Graham C. Mullen,
Senior District Judge. (3:03-cr-00208)


Argued:   September 25, 2008            Decided:   November 17, 2008


Before WILKINSON, MICHAEL, and SHEDD, Circuit Judges.


Affirmed by unpublished per curiam opinion.


ARGUED: Alton Larue Gwaltney, III, MOORE & VAN ALLEN, Charlotte,
North Carolina, for Appellant. Amy Elizabeth Ray, OFFICE OF THE
UNITED STATES ATTORNEY, Asheville, North Carolina, for Appellee.
ON BRIEF: Gretchen C. F. Shappert, United States Attorney,
Charlotte, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

        William          Harris    Taft,   Jr.       pled    guilty       to   one    count   of

conspiracy          to    defraud    the   United         States,    in    violation     of   18

U.S.C. § 371.             He now appeals his 41-month sentence imposed upon

remand for resentencing pursuant to United States v. Booker, 543

U.S. 220 (2005).             For the following reasons, we affirm.

        Taft’s primary argument is that the district court applied

the Sentencing Guidelines in a mandatory fashion by giving a

presumption          of     reasonableness           to     the     Guidelines       range     in

violation of Booker. 1              In Rita v. United States, 127 S. Ct 2456,

2465 (2007), which had not yet been decided at the time of

sentencing,          the     Supreme       Court      limited        application       of     the

reasonableness            presumption      to    appellate        review       and   explicitly

stated that “the sentencing court does not enjoy the benefit of

a legal presumption that the Guidelines sentence should apply.”

Taft        filed   written       objections       prior     to     sentencing,       which   he

later referenced at the hearing.                           In his written objections,

Taft objected to our post-Booker sentencing scheme.                                    However,

Taft did not explicitly object to any application of a district

court       presumption       of    reasonableness          to    the     Guidelines     range.


        1
       Taft also contends that his sentence violates the Sixth
Amendment because it is based on facts not found by a jury and
is unreasonable. We have reviewed the record and find no merit
to these contentions.



                                                 2
Subsequently, when the district court noted a presumption of

reasonableness     twice     during       the        hearing,    Taft     failed     to

explicitly object on these grounds either time.                          Because Taft

did   not    properly   object    to   the      presumption,        we    review    his

sentence for plain error. See United States v. Olano, 507 U.S.

725 (1993). 2

      To    establish   plain    error,       Taft    must   show   that    an   error

occurred, that the error was plain, and that the error affected

his substantial rights. Id. at 732-34.                  Even if Taft makes this

three-part showing, correction of the error remains within our

discretion,     which   we   should       not    exercise       unless     the   error

“‘seriously      affect[s]      the    fairness,         integrity        or     public

reputation of [the] judicial proceedings.’” Id. at 736 (internal

citations omitted).

      Our review of the record leads us to conclude there was

error. See Rita, 127 S. Ct at 2465.                    The error is also plain.

See Johnson v. United States, 520 U.S. 461, 468 (1997) (holding

that “in a case. . .where the law at the time of trial was

settled and clearly contrary to the law at the time of appeal —

      2
        Plain error is appropriate in reviewing post-Booker
sentencing appeals. See United States v. White, 405 F.3d 208,
217 (4th Cir. 2005). Moreover, at least one other circuit court
has applied plain error analysis to an argument similar to the
one Taft presents (i.e., the district court’s application of a
reasonableness presumption to a Guideline sentence). See United
States v. Howe, 538 F.3d 842, 857 (8th Cir. 2008).



                                          3
it is enough that an error be ‘plain’ at the time of appellate

consideration”).

     We must now determine whether Taft has shown that the plain

error in sentencing affected his substantial rights.                            Olano, 507

U.S. at 734.       In this regard, Taft must demonstrate prejudice —

i.e.,   the     error    affected    the    outcome         of   the     district          court

proceedings. Id.         In other words, Taft must show that had the

error     not    occurred,    he    would       have       received      a     less    severe

sentence.       We find that Taft has failed to make this showing.

     At       sentencing,     the   district          court      noted       that     it    had

considered the § 3553(a) factors.                 Although the district court

noted     a     presumption    of    reasonableness              in    regard         to    the

Guidelines,       it   also   explicitly        and    correctly       noted        that    the

Guidelines were advisory.            Further, the district court did not

blindly accept the sentence calculations contained in the PSR.

In   fact,       the    district     court,           in     giving          individualized

consideration to Taft, decreased his criminal history category

from II to I.          Although the court could have been more precise

in its sentencing comments, it is clear that the court knew the

Guidelines were advisory and that the court gave consideration

to the § 3553(a) factors.              It is also clear that the court

fashioned an individualized sentence for Taft.                           Therefore, Taft

has not persuaded us that his sentence would have been less had



                                            4
the   district     court    not   erroneously       stated   there     was   a

presumption of reasonableness to a Guidelines sentence.

      Based   on   the   foregoing,   we   affirm    the   district   court’s

judgment.

                                                                      AFFIRMED




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