                              UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                              No. 05-4082



UNITED STATES OF AMERICA,

                                                 Plaintiff - Appellee,

          versus


DAVID STEPHEN ROLLISON,

                                                Defendant - Appellant.


                              No. 05-4083



UNITED STATES OF AMERICA,

                                                 Plaintiff - Appellee,

          versus


TIMOTHY GOVERNOR ALEXANDER,

                                                Defendant - Appellant.


Appeals from the United States District Court for the Middle
District of North Carolina, at Durham.  James A. Beaty, Jr.,
District Judge. (CR-04-195)


Submitted:   September 14, 2005             Decided:   October 12, 2005


Before LUTTIG, WILLIAMS, and MICHAEL, Circuit Judges.
Affirmed by unpublished per curiam opinion.


Louis C. Allen, III, Federal Public Defender, Williams C. Ingram,
First Assistant Federal Public Defender, Greensboro, North
Carolina; Walter Lamar Jones, CLIFFORD, CLENDENIN O’HALE & JONES,
L.L.P., Greensboro, North Carolina, for Appellants.    Anna Mills
Wagoner, United States Attorney, Lisa B. Boggs, Assistant United
States Attorney, Greensboro, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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




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PER CURIAM:

          In these consolidated appeals, Appellants David Rollison

and Timothy Alexander appeal their sentences imposed after they

pleaded guilty under a written plea agreement to various crimes

related to their participation in an armed robbery of a North

Carolina jewelry store. They assert on appeal that their sentences

violated the Sixth Amendment under United States v. Booker, 125 S.

Ct. 738 (2005), and that they should be resentenced because the

Sentencing Guidelines were applied as mandatory.     Finding no error

in their sentencing, we affirm.

          Both   Appellants   asserted   at   sentencing   that    their

guidelines sentencing violated the Constitution under Blakely v.

Washington, 542 U.S. 296 (2004), so we review this issue de novo.

In Booker, the Supreme Court held that the “Sixth Amendment is

violated when a district court, acting pursuant to the Sentencing

Reform Act and the guidelines, imposes a sentence greater than the

maximum authorized by the facts found by the jury alone.”         United

States v. Hughes, 401 F.3d 540, 546 (4th Cir. 2005).        The Court

remedied this constitutional violation by severing and excising the

statutory provisions that mandate sentencing and appellate review

under the guidelines, thus making the guidelines advisory.        United

States v. Booker, 125 S. Ct. 738, 756-57 (2005).

          Contrary to the Appellants’ arguments, the calculation of

the Appellants’ criminal histories under the Sentencing Guidelines


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was not Sixth Amendment error because the calculations were based

upon their prior convictions.            The Supreme Court reaffirmed in

Booker the prior conviction exception of Almendarez-Torres v.

United States, 523 U.S. 224 (1998).         See Booker, 125 S. Ct. at 756

(“Any 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.”).

While Justice Thomas’ concurrence in Shepard v. United States, 125

S. Ct. 1254, 1263-64 (2005), expressed doubt about the future

viability of the exception, the exception is still good law.              See

United States v. Cheek, 415 F.3d 349 (4th Cir. 2005) (holding that,

under the Sixth Amendment, the fact of a prior conviction need not

be submitted to the jury or admitted by the defendant for it to

serve as the basis for a sentence enhancement).

            Nor    does   the   application    of    the   prior   conviction

exception to these Appellants raise any of the problems outlined in

Shepard.    In Shepard, the Supreme Court instructed that Sixth

Amendment   protections     apply   to    disputed   facts   about   a   prior

conviction.       Id. at 1262-63.    The Appellants never disputed any

facts related to their prior convictions, so the district court’s

determination of their criminal histories did not violate the Sixth

Amendment. Cf. United States v. Washington, 404 F.3d 834, 843 (4th

Cir. 2005) (finding that district court’s reliance on disputed


                                    - 4 -
facts    about     the     defendant’s   prior   conviction     violated      the

defendant’s Sixth Amendment right to trial by jury).                  This Court

has held that the nature and occasion of prior offenses are facts

inherent in the convictions that need not be alleged in the

indictment or submitted to a jury.           See United States v. Thompson,

    F.3d         , 2005 WL 2128957 (4th Cir. Sept. 6, 2005) (No. 04-

4678).    For these reasons, we find this issue is meritless.

           As for the application of the Sentencing Guidelines as

mandatory,       neither    Appellant    asserted   this    exact     issue    at

sentencing, so we review this issue for plain error.                  The Booker

Court concluded that even in the absence of a Sixth Amendment

violation,   the     imposition    of    a   sentence   under   the    mandatory

guidelines regime was error.         Booker, 125 S. Ct. at 769; see also

United States v. White, 405 F.3d 208, 216-17 (4th Cir. 2005).

Hughes explained that sentencing under a mandatory regime is “a

separate class of error . . . distinct from the Sixth Amendment

claim that gave rise to the decision in Booker.”             Hughes, 401 F.3d

at 553.    This Court recognized that “[t]his error . . . may be

asserted even by defendants whose sentences do not violate the

Sixth Amendment.”        Id.   Such is the case here.      The district court

may have erred in sentencing these Appellants under the former

mandatory guidelines regime, but the question is whether the error

was plain and should be recognized by the Court.




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            To demonstrate plain error, a defendant must establish

that error occurred, that it was plain, and that it affected his

substantial rights.        United States v. Olano, 507 U.S. 725, 731-32

(1993); Hughes, 401 F.3d at 547-48.                If a defendant establishes

these    requirements,       the   Court’s    “discretion    is    appropriately

exercised only when failure to do so would result in a miscarriage

of justice, such as when the defendant is actually innocent or the

error    seriously    affects       the   fairness,     integrity     or     public

reputation of judicial proceedings.”                Hughes, 401 F.3d at 555

(internal quotation marks and citation omitted).

            In White, this Court determined imposing a sentence under

the guidelines as mandatory was error that was plain.                 White, 405

F.3d at 216-17.       However, the Court in White then discussed the

third prong of the plain error analysis. In determining whether an

error    affected    the   defendant’s       substantial    rights,   the     Court

reasoned    that    “the   error    of    sentencing    a   defendant      under   a

mandatory guidelines regime” was not an error for which prejudice

would be presumed.         Id. at 219-20, 224.         Rather, the defendant

bears the burden of showing that this error prejudiced him, or

“‘affected the outcome of the district court proceedings.’” Id. at

223     (quoting    Olano,    507    U.S.     at   734).      In    making     this

determination, the Court must consider the standard in Kotteakos v.

United States, 328 U.S. 750, 765 (1946): “whether ‘after pondering

all that happened without stripping the erroneous action from the


                                      - 6 -
whole, . . . the judgment was . . . substantially swayed by the

error.’” White, 405 F.3d at 223 (citations and footnotes omitted).

            In White, this Court held that treating the guidelines as

mandatory was error and that the error was plain.           Id. at 216-17.

The Court declined to presume prejudice, however, id. at 217-18,

and held 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.

Because the record in White provided no nonspeculative basis

suggesting that the court would have sentenced the defendant

differently had the guidelines been advisory instead of mandatory,

this Court concluded that the error did not affect the defendant’s

substantial rights.     Id. at 225.

            The Appellants do not assert in any nonspeculative way

how their sentences would have been different if the district court

sentenced them under an advisory guidelines regime. Thus, it would

only be speculation to conclude that the district court would have

sentenced them to a lower sentence had it treated the guidelines as

merely advisory.


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           For these reasons, we affirm the Appellants’ sentences.

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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