                              UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                              No. 04-4209



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

          versus


CHARLES WILLIE WEBSTER,

                                             Defendant - Appellant.



Appeal from the United States District Court for the Southern
District of West Virginia, at Charleston. John T. Copenhaver, Jr.,
District Judge. (CR-03-218)


Submitted:   August 4, 2006             Decided:    September 6, 2006


Before TRAXLER, KING, and DUNCAN, Circuit Judges.


Affirmed in part; vacated and remanded in part by unpublished per
curiam opinion.


John G. Hackney, Jr., Charleston, West Virginia, for Appellant.
Steven Ian Loew, OFFICE OF THE UNITED STATES ATTORNEY, Charleston,
West Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Charles Willie Webster pled guilty to one count of

firearm   possession,     in    violation     of    18   U.S.C.   §§   922(g)(1),

924(a)(2) (2000).      The district court determined Webster to be an

armed career criminal, resulting in a fifteen year statutory

mandatory minimum sentence.           See 18 U.S.C. § 924(e)(1) (2000).

Adopting the recommendation of the presentence report, the district

court    sentenced    Webster    to    188    months’     imprisonment,      which

represented    the    bottom    of    the    applicable    federal     sentencing

guidelines range and eight months above the statutory minimum. The

district court noted this was a “terribly long” sentence for

Webster, given his rather advanced age, but stated that it was the

“least    [lengthy]     sentence       available.”         Webster      appealed,

challenging only his sentence.

            Webster moves to remand this case to the district court

for resentencing in light of United States v. Booker, 543 U.S. 220

(2005).   The Government does not oppose remand for the purposes of

resentencing.        In Booker, the Supreme Court held that when a

defendant is sentenced under a mandatory guidelines scheme, “[a]ny

fact (other than a prior conviction) which is necessary to support

a   sentence    exceeding      the    maximum      authorized     by   the   facts

established by a plea of guilty or a jury verdict must be admitted

by the defendant or proved to a jury beyond a reasonable doubt.”

543 U.S. at 224.      Thus, error under the Sixth Amendment occurs when


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the district court imposes a sentence greater than the maximum

permitted based on facts found by a jury or admitted by the

defendant.   Id.

            Subsequently, in United States v. Hughes, 401 F.3d 540,

546 (4th Cir. 2005), we held that a sentence that was imposed under

the pre-Booker mandatory sentencing scheme and was enhanced based

on facts found by the court, not found by a jury or admitted by the

defendant,   constitutes   plain    error.   That   error   affects   the

defendant’s substantial rights and warrants reversal under Booker

when the record does not disclose what discretionary sentence the

district court would have imposed under an advisory guideline

scheme. Hughes, 401 F.3d at 546-56. We directed sentencing courts

to calculate the appropriate guideline range, consider that range

in conjunction with other relevant factors under the guidelines and

18 U.S.C.A. § 3553(a) (West 2000 & Supp. 2005), and impose a

sentence.    If the district court imposes a sentence outside the

guideline range, the court should state its reasons for doing so.

Hughes, 401 F.3d at 546; see also United States v. Green, 436 F.3d

449, 455-56 (4th Cir. 2006).       Hughes also recognized “that after

Booker, there are two potential errors in a sentence imposed

pursuant to the pre-Booker mandatory guidelines regime: a Sixth

Amendment error, which Hughes raised, and an error in failing to

treat the guidelines as advisory, which Hughes did not raise.”

Hughes, 401 F.3d at 552.


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            In United States v. White, 405 F.3d 208 (4th Cir.), cert.

denied, 125 S. Ct. 668 (2005), we held that treating the guidelines

as mandatory in the absence of a Sixth Amendment violation was

plain error in light of Booker.            White, 405 F.3d at 216-17.        We

declined to presume prejudice in this situation, id. at 217-22,

holding that the “prejudice inquiry, therefore, 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 (internal quotation marks and

citations     omitted).    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.

In   White,    because    “the    record    as   a   whole    provide[d]     no

nonspeculative basis for concluding that the treatment of the

guidelines as mandatory ‘affect[ed] the district court’s selection

of the sentence imposed,’” id. at 223 (quoting Williams v. United

States, 503 U.S. 193, 203 (1992)), we concluded that the error did

not affect the defendant’s substantial rights and, thus, affirmed

the sentence.     White, 405 F.3d at 225; see also United States v.

Collins, 412 F.3d at 524-25 (finding that defendant failed to

demonstrate prejudice from being sentenced under the mandatory

sentencing guidelines).




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            Here, the district court did not commit Sixth Amendment

error at sentencing.        The record indicates that the district court

properly made an armed career criminal finding under 18 U.S.C.

§ 924(e) (2000).    See United States v. Thompson, 421 F.3d 278, 282-

84   (4th   Cir.   2005),    cert.   denied,   126   S.   Ct.   1463   (2006).

Moreover, additional fact-finding made by the district court at the

sentencing hearing did not violate the Sixth Amendment. See United

States v. Evans, 416 F.3d 298, 300 n.4 (4th Cir. 2005) (determining

Sixth Amendment error by considering guidelines range based on

facts admitted by defendant without adjusting for acceptance of

responsibility).

            Nevertheless, as Webster correctly asserts, the district

court erred in applying the sentencing guidelines as mandatory.1

Furthermore, in light of the court’s expressed concern as to the

length of the sentence required to be imposed by a mandatory

application of the guidelines, there is a nonspeculative basis on

which we may conclude that the district court would have sentenced

Webster differently had the court proceeded under an advisory

guidelines scheme.          See White, 405 F.3d at 223 (finding that

defendant failed to meet burden of actual prejudice where “the


      1
      Just as we noted in Hughes, 401 F.3d at 545 n.4, “[w]e of
course offer no criticism of the district judge, who followed the
law and procedure in effect at the time” of Webster’s sentencing.
See generally, Johnson v. United States, 520 U.S. 461, 468 (1997)
(stating that an error is “plain” if “the law at the time of trial
was settled and clearly contrary to the law at the time of
appeal”).

                                     - 5 -
district court made certain statements suggesting that it was

content to sentence [the defendant] within the guideline range.”).

Accordingly, Webster has established plain error in sentencing, and

we vacate the sentence and remand for resentencing under Booker and

White.

          Finally, Webster has filed a letter docketed as a pro se

supplemental brief and an implied motion to submit the brief.            We

grant Webster’s implied motion to submit the pro se supplemental

brief, but we find his contentions meritless.2         We deny Webster’s

motion to permit an amicus party to file a brief in this case.

          In    sum,   we   affirm   Webster’s   conviction,   vacate   his

sentence, and grant his motion to remand for resentencing in light

of Booker.     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 IN PART;
                                             VACATED AND REMANDED IN PART




     2
      By his guilty plea, Webster admitted the material elements of
the offense. McCarthy v. United States, 394 U.S. 459, 466 (1969).

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