                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 05-4577



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

          versus


DAVID HARLEY HAYWARD,

                                              Defendant - Appellant.


Appeal from the United States District Court for the District of
South Carolina, at Florence.   Terry L. Wooten, District Judge.
(4:04-cr-00723-TLW)


Submitted: July 20, 2006                       Decided: July 24, 2006


Before WIDENER and WILKINSON, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


William F. Nettles, IV, Assistant Federal Public Defender,
Florence, South Carolina, for Appellant. Jonathan Scott Gasser,
Assistant United States Attorney, Columbia, South Carolina; Rose
Mary Parham, Assistant United States Attorney, Florence, South
Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

          David Harley Hayward appeals his guilty-plea conviction

and thirty-eight month sentence for unlawful possession of a

firearm, in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2) (2000).

Hayward’s attorney filed a brief in accordance with Anders v.

California, 386 U.S. 738 (1967), stating he finds no meritorious

grounds for appeal, but raising two potential issues.       Hayward

declined to filed a pro se supplemental brief.    Additionally, the

Government also declined to file a brief.     Finding no reversible

error, we affirm.

          In the Anders brief, Hayward contends that the district

court violated Fed. R. Crim. P. 11. by failing to advise him of the

court’s obligation to impose a $100 special assessment and of the

potential for perjury charges should he testify falsely during the

guilty plea proceedings. This Court generally reviews the adequacy

of a guilty plea proceeding de novo.    See United States v. Damon,

191 F.3d 561, 564 n.2 (4th Cir. 1999).         Rule 11 violations,

however, are reviewed under a harmless error standard.      See id.

Any variance from the Rule 11 requirements that does not affect the

substantial rights of the defendant is disregarded.     See Fed. R.

Crim. P. 11(h); United States v. DeFusco, 949 F.2d 114, 117 (4th

Cir. 1991).   Where a defendant fails to move to withdraw his guilty

plea, but instead raises the issue for the first time on appeal, it

is his burden to show:     (1) error; (2) that was plain; (3) the


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error affected his substantial rights; and (4) the Court should

exercise its discretion to notice the error.           See United States v.

Martinez, 277 F.3d 517, 529, 532 (4th Cir. 2002).            To establish his

substantial rights were affected, a defendant must demonstrate that

absent the error, he would not have entered his guilty plea.                Id.

at 532. This Court may consider the entire record when determining

the effect of any error on Hayward’s substantial rights.                    See

United States v. Vonn, 535 U.S. 55, 74-75 (2002).              After careful

review of the record, we conclude that any error by the district

court did not affect Hayward’s substantial rights.             See Martinez,

277 F.3d at 532; United States v. Fentress, 792 F.2d 461, 465-66

(4th Cir. 1986) (finding that district court’s failure to inform

defendant of its authority to order restitution was harmless error

where court had informed defendant that he faced maximum fine in

excess of restitution eventually ordered); United States v. Graves,

98 F.3d 258, 259 (7th Cir. 1996) (finding harmless error where

there is “no current or prospective prosecution of [defendant] for

perjury” ) (alteration added).

           Hayward   also    contends    the    sentence     imposed   by   the

district   court   was   unreasonable.         After   the   Supreme   Court’s

decision in United States v. Booker, 542 U.S. 220 (2005), a

sentencing court is no longer bound by the range prescribed by the

sentencing guidelines.      See United States v. Hughes, 401 F.3d 540,

546 (4th Cir. 2005).        However, in determining a sentence post-


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Booker, sentencing courts are still required to calculate and

consider the guideline range prescribed thereby as well as the

factors set forth in 18 U.S.C. § 3553(a) (2000).             Id.    As stated in

Hughes, this Court will affirm a post-Booker sentence if it is both

reasonable and within the statutorily prescribed range.                   Id. at

546-47.     Hayward’s 38-month sentence was not only within the

advisory guideline range, but also well below the statutory maximum

of ten years.     See 18 U.S.C. §§ 922(g), 924(a).               Accordingly, we

find the sentence imposed was reasonable.

            In accordance with Anders, we have reviewed the entire

record in this case and have found no meritorious issues for

appeal.     We therefore affirm Hayward’s conviction and sentence.

This court requires that counsel inform his client, in writing, of

his right to petition the Supreme Court of the United States for

further review.       If the client requests that a petition be filed,

but counsel believes that such 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 the client.       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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