                             UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                             No. 03-4405



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

          versus


HARRY NOLAN MOODY,

                                              Defendant - Appellant.


     On Remand from the Supreme Court of the United States.
                      (S. Ct. No. 05-5704)


Submitted:   April 7, 2006                    Decided:   May 4, 2006


Before MICHAEL, TRAXLER, and KING, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Kyle W. King, Weaverville, North Carolina, for Appellant. Gretchen
C. F. Shappert, United States Attorney, Charlotte, North Carolina,
Thomas R. Ascik, 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Unpublished opinions are not binding precedent in this circuit.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:

          Harry Nolan Moody was convicted, by jury, of one count of

conspiracy    to   manufacture   and   distribute   methamphetamine,   in

violation of 21 U.S.C. §§ 841 and 846 (2000).           We affirmed his

conviction and sentence, and denied rehearing.        See United States

v. West, 98 Fed. Appx. 259 (4th Cir. 2004) (unpublished).         Moody

petitioned the Supreme Court of the United States for writ of

certiorari, which the Supreme Court granted. This court’s judgment

was vacated, in light of the Supreme Court’s decision in United

States v. Booker, 543 U.S. 220 (2005), and remanded to this court

for further proceedings.

          Moody was sentenced prior to the decisions in Booker and

its predecessor, Blakely v. Washington, 542 U.S. 296 (2004).

During the sentencing proceedings, Moody did not object to the

mandatory nature of the sentencing guidelines or the district

court’s application of sentencing enhancements based on facts not

admitted by him or found by the jury beyond a reasonable doubt.

Therefore, we review Moody’s sentence for plain error.           United

States v. Hughes, 401 F.3d 540, 547-48 (4th Cir. 2005).

          Moody contends that the district court plainly erred in

applying the guidelines as mandatory.           Moody argues that the

district court would not have designated him a career offender

under U.S. Sentencing Guidelines Manual § 4B1.1 (2001) (“USSG”) had




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the district court treated the sentencing guidelines as advisory.*

Our review of the record discloses that the district court gave no

indication that it would have either refrained from classifying

Moody as a career criminal or otherwise imposed a lower sentence

under an advisory guideline system.      Therefore, Moody cannot show

actual prejudice, and resentencing is not authorized on this

ground.   United States v. White, 405 F.3d 208, 223-24 (4th Cir.

2005).

          Accordingly,   we   affirm    the   sentence   imposed    by   the

district court.   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




     *
      Moody does not contend the district court made impermissible
factual findings regarding his criminal history in order to
classify him as a career offender; thus, the only error alleged is
non-constitutional error.

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