                             UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                             No. 07-4071



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

          versus


JOHN FITZGERALD JACKSON,

                                              Defendant - Appellant.


Appeal from the United States District Court for the Western
District of Virginia, at Harrisonburg. James C. Turk, Senior
District Judge. (5:04-cr-30015-jct)


Submitted:   July 18, 2007                 Decided:   August 3, 2007


Before KING, SHEDD, and DUNCAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Helen E. Phillips, Stanardsville, Virginia, for Appellant. Bruce
A. Pagel, OFFICE OF THE UNITED STATES ATTORNEY, Charlottesville,
Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            John Fitzgerald Jackson pleaded guilty in the Western

District of Virginia to one count of conspiracy to distribute and

possess with intent to distribute 500 grams or more of cocaine,

fifty grams or more of crack cocaine, and an unspecified quantity

of marijuana, in violation of 21 U.S.C. §§ 841(a)(1), 846 (2000).

Jackson was also indicted on one count of possession of a firearm

after having been convicted of a felony, in violation of 18 U.S.C.

§ 922(g) (2000), by the grand jury in the Western District of

Pennsylvania.        This indictment was transferred to the Western

District of Virginia pursuant to Fed. R. Crim. P. 20.            Jackson was

ultimately sentenced by the district court for the Western District

of Virginia to 262 months of imprisonment on the drug conspiracy

count, and a concurrent term of 180 months of imprisonment on the

felon-in-possession count.            Because the district court had not

conducted a plea hearing pursuant to Fed. R. Crim. P. 11 on the

felon-in-possession charge, we affirmed Jackson’s conviction on the

drug conspiracy, but vacated the conviction on the felon-in-

possession charge, vacated the sentence, and remanded for further

proceedings.    United States v. Jackson, 200 F. App’x 191 (4th Cir.

2006).     On   remand,     Jackson    pleaded   guilty   to   the   felon-in-

possession charge in a Rule 11 proceeding, and the district court

again    sentenced    him   to   180    months   of   imprisonment    to   run




                                       - 2 -
concurrently to the previously imposed 262-month sentence on the

drug conspiracy.     Jackson timely appealed.

            On appeal counsel filed a brief pursuant to Anders v.

California, 386 U.S. 738 (1967).         In the Anders brief, counsel

states that there are no meritorious issues for appeal but suggests

that the district court erred in applying the Guidelines,1 and

particularly the career offender provisions, in a mandatory fashion

in sentencing Jackson.    In his pro se supplemental brief, Jackson

raises three allegations of error in the determination of his

sentence.    In a second supplemental brief, Jackson asserts that a

pending forfeiture proceeding violates the plea agreement.         We

affirm.

            Because Jackson did not object to the presentence report

(PSR) that was adopted by the district court, this court’s review

of the district court’s sentence is for plain error.           United

States v. Olano, 507 U.S. 725, 732 (1993); United States v. Hughes,

401 F.3d 540, 547 (4th Cir. 2005).   Under the plain error standard,

Jackson 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




     1
      U.S. Sentencing Guidelines Manual (USSG) (2002).

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of judicial proceedings.”         Id. at 736 (internal quotation marks

omitted).

            Jackson’s sentence on the drug conspiracy count was

driven by his designation as a career offender.           Neither counsel

nor Jackson assert any factual challenge to this determination, but

argue that application of the career offender enhancement violated

United States v. Booker, 543 U.S. 220 (2005). Counsel asserts that

the   district   court    erred    in   applying   the   career   offender

enhancement and the Guidelines generally in a mandatory fashion

without     considering   Jackson’s     history    and   other    personal

characteristics.     In United States v. White, 405 F.3d 208 (4th

Cir.), cert. denied, 126 S. Ct. 668 (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)).




                                    - 4 -
          In this case, Jackson asserts that the district court’s

comment at his first sentencing that the court was going to give

him a bit of a break by sentencing him at the bottom of the

Guidelines range is an indication that the court would have imposed

a lesser sentence under an advisory system. This argument does not

entitle Jackson to any relief.    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,

and Jackson cannot demonstrate that any error in sentencing him

pursuant to a mandatory Guidelines scheme affected his substantial

rights.   The district court’s comment at the first sentencing

hearing that he was going to give Jackson a break by sentencing him

at the bottom of the Guidelines range does not suggest that the

court would have varied below that range, but rather reflects the

court’s exercise of discretion within that range. We conclude that

this argument is without merit.

          In accordance with Anders, we have reviewed the record in

this case and have found no meritorious issues for appeal.   We have

considered the arguments asserted in Jackson’s pro se briefs and

conclude that he is not entitled to relief.2   We therefore affirm



     2
      We decline to consider Jackson’s assertion in his second
supplemental brief that the forfeiture proceeding violates the plea
agreement. This proceeding remains pending in the district court,
and Jackson may assert this argument in that court.       When the
district court issues a final judgment, Jackson may appeal from
that judgment.

                              - 5 -
Jackson’s conviction and sentence.      We deny counsel’s motion to

withdraw from representation.      This court requires that counsel

inform Jackson, in writing, of the right to petition the Supreme

Court of the United States for further review. If Jackson requests

that a petition be filed, but counsel believes that such a petition

would be frivolous, then counsel may move in this court for leave

to withdraw from representation.    Counsel’s motion must state that

a copy thereof was served on Jackson.

          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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