                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 04-4267



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

          versus


KEITH ELLIOTT BYRD,

                                              Defendant - Appellant.


         On Remand from the United States Supreme Court.
                       (S. Ct. No. 04-8986)


Submitted:   November 23, 2005            Decided:   January 6, 2006


Before LUTTIG, KING, and DUNCAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Daniel J. Clifton, LAW OFFICE OF DANIEL J. CLIFTON, Charlotte,
North Carolina, for Appellant. Gretchen C. F. Shappert, United
States Attorney, Charlotte, North Carolina; Amy E. Ray, Assistant
United States Attorney, Asheville, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

          Keith   Elliott   Byrd    was    convicted,   by    a   jury,   of

conspiracy to possess with intent to distribute (Count 1), and the

importation from Jamaica (Count 2), of between 500 grams and five

kilograms of cocaine, in violation of 21 U.S.C. §§ 841, 846 (2000),

and 21 U.S.C. §§ 952, 960 (2000), respectively.         We affirmed his

conviction and sentence.    See United States v. Byrd, No. 04-4267

(4th Cir. Dec. 6, 2004) (unpublished).

          Byrd filed a petition for writ of certiorari in the

United States Supreme Court.       His petition was granted, and this

court’s judgment was vacated in light of the decision in United

States v. Booker, 125 S. Ct. 738 (2005).          Byrd’s case has been

remanded to this court for further proceedings.         Id.

          Byrd’s sentence was imposed prior to the decision in

Booker and its predecessor, Blakely v. Washington, 542 U.S. 296

(2004), and he did not raise objections to his sentence based on

the mandatory nature of the Sentencing Guidelines.           Therefore, we

review his sentence for plain error.       See United States v. Hughes,

401 F.3d 540, 546-60 (4th Cir. 2005); United States v. White, 405

F.3d 208, 215 (4th Cir. 2005).

          On remand, Byrd contends that he was improperly sentenced

under a mandatory guideline regime.        In White, we determined that

“even in the absence of a Sixth Amendment violation, the imposition

of a sentence under the former mandatory guidelines regime rather


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than under the advisory regime outlined in Booker is error.”                   Id.

at 216-17.    However, we declined to presume prejudice, id. at 217-

22, and instead held that the prejudice inquiry is “whether after

pondering all that happened without stripping the erroneous action

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

by the error.”       Id. at 223.     Therefore, to make this showing, a

defendant    must    “demonstrate,     based   on    the    record,     that   the

treatment of the guidelines as mandatory caused the district court

to impose a longer sentence than it otherwise would have imposed.”

Id. at 224.

             Here, the district court sentenced Byrd at the bottom of

the applicable sentencing range.             While it commented regarding

Byrd’s co-defendant’s sentence, stating that it felt the guidelines

were “harsh,” but that it nonetheless was bound by them, it made no

such comments when it sentenced Byrd earlier in the same hearing.

Nor did it make any comments in sentencing Byrd that would indicate

that it would have imposed a different sentence under an advisory

guideline system.       Therefore, as the record does not reveal a

nonspeculative basis for concluding that the district court would

have   imposed   a    shorter   sentence     had    it    known    it   possessed

discretion to do so, we find that Byrd cannot demonstrate that the

district    court’s    error    in   sentencing     him    under    a   mandatory

guidelines regime affected his substantial rights such that he is




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entitled to resentencing.   See United States v. Olano, 507 U.S.

725, 734-35 (1993).

          Accordingly, we affirm Byrd’s sentence and reinstate this

court’s prior opinion affirming his 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




     *
      As Byrd’s co-defendant did not join in his petition for writ
of certiorari to the Supreme Court, the Supreme Court’s order
vacating this court’s previous opinion relates to Byrd’s portion of
the appeal only, and the portion of this court’s order relating to
his co-defendant is not affected by either the Supreme Court’s
order vacating and remanding the case to this court, nor this
court’s present disposition of Byrd’s appeal.

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