                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 04-5128



UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

          versus


JAMARRIO DOBBS, a/k/a Sleepy,

                                              Defendant - Appellant.



Appeal from the United States District Court for the Southern
District of West Virginia, at Charleston. David A. Faber, Chief
District Judge. (CR-04-47)


Submitted:   November 9, 2005             Decided:   January 17, 2006


Before WILKINSON, NIEMEYER, and LUTTIG, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Andrew J. Katz, THE KATZ WORKING FAMILIES LAW FIRM, LC, Charleston,
West Virginia, for Appellant.        Kasey Warner, United States
Attorney, John J. Frail, Assistant United States Attorney,
Charleston, West Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

           Jamarrio Dobbs pled guilty to a one count indictment

charging possession with intent to distribute 50 grams or more of

cocaine base, in violation of 21 U.S.C. § 841(a)(1) (2000).             Dobbs

was sentenced to 188 months of imprisonment, followed by five years

of supervised release.     He appeals his sentence.

           Dobbs argues on appeal that the district court erred

under United States v. Booker, 125 S. Ct. 738 (2005), in setting

his base offense level at 32 based on drug quantity pursuant to

U.S. Sentencing Guidelines Manual § 2D1.1(a)(3)(c)(2) (2004), and

in enhancing his offense level based on facts not alleged in the

indictment or admitted by Dobbs.          Because Dobbs preserved these

issues by objecting to the presentence report based upon Blakely v.

Washington, 542 U.S. 296 (2004), our review is de novo.          See United

States v. Mackins, 315 F.3d 399, 405 (4th Cir. 2003) (“If a

defendant has made a timely and sufficient Apprendi[*] sentencing

objection in the trial court, and so preserved his objection, we

review de novo.”).     When a defendant preserves a Sixth Amendment

error, “we must reverse unless we find this constitutional error

harmless beyond a reasonable doubt, with the Government bearing the

burden of proving harmlessness.”          Id. (citations omitted); see

United   States   v.   White,   405   F.3d   208,   223   (4th   Cir.   2005)

(discussing difference in burden of proving that error affected


     *
      Apprendi v. New Jersey, 530 U.S. 466 (2000).

                                  - 2 -
substantial rights under harmless error standard in Fed. R. App. P.

52(a), and plain error standard in Fed. R. App. P. 52(b)).

            In Booker, the Supreme Court held that the mandatory

manner in which the federal sentencing guidelines required courts

to impose sentencing enhancements based on facts found by the court

by a preponderance of the evidence violated the Sixth Amendment.

125 S. Ct. at 746, 750.         The Court remedied the constitutional

violation   by   severing     two   statutory    provisions,   18   U.S.C.A.

§§ 3553(b)(1), 3742(e) (West 2000 & Supp. 2004), thereby making the

guidelines advisory.        United States v. Hughes, 401 F.3d 540, 546

(4th Cir. 2005).

            Our review of the record leads us to conclude that Dobbs’

base offense level was properly determined and is supported by the

drug quantity alleged in the indictment to which he pled guilty.

However, the imposition of the two-level enhancement of his offense

level for possession of a dangerous weapon at the time of the

offense,    pursuant   to    USSG   §   2D1.1(b)(1),   and   the    two-level

enhancement based on his role in the offense, pursuant to USSG §

3B1.1(c), was error under the Sixth Amendment as applied in Booker

because the facts supporting these enhancements were not alleged in

the indictment or admitted by Dobbs.            We conclude, however, that

ultimately there was no Sixth Amendment violation because, absent

the enhancements, Dobbs’ guideline range would have been 168 to 210

months of imprisonment, and his 188-month sentence was within that


                                    - 3 -
guideline range.         See United States v. Evans, 416 F.3d 298, 300-01

(4th Cir. 2005).

             Dobbs    also    argues    that      the   district       court    erred    in

applying the federal sentencing guidelines as mandatory in violation

of Booker.       Because Dobbs raises this claim for the first time on

appeal, his claim is reviewed for plain error.                   White, 405 F.3d at

215.   In White, we held the mandatory application of the guidelines

is plain error; however, we also held prejudice from the error

cannot be presumed.          Id. at 219.     Accordingly, Dobbs must show the

district court’s mandatory application of the sentencing guidelines

was    actually      prejudicial       and   affected      the     outcome       of     the

proceedings.         Id. at 223.        Under this standard, although the

district   court      committed    error     in    treating      the    guidelines       as

mandatory, see Hughes, 401 F.3d at 547-48, Dobbs is not entitled to

relief.    We find the record contains no nonspeculative basis on

which to conclude that the district court would have sentenced Dobbs

to a lower sentence had the court proceeded under an advisory

guideline scheme, and thus Dobbs has failed to demonstrate actual

prejudice.

             Accordingly, we affirm Dobbs’ 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

                                        - 4 -
