                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 03-4635



UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

          versus


EDDIE ALEXANDER LONG,

                                              Defendant - Appellant.



         On Remand from the United States Supreme Court.
                       (S. Ct. No. 04-457)


Submitted:   September 21, 2005           Decided:   October 14, 2005


Before WILKINSON, WILLIAMS, and MICHAEL, Circuit Judges.


Opinion reinstated; sentence affirmed by unpublished per curiam
opinion.


S. Benjamin Bryant, Charleston, West Virginia, for Appellant.
Kasey Warner, United States Attorney, Steven I. Loew, 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Unpublished opinions are not binding precedent in this circuit.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:

          This case is before the court on remand from the Supreme

Court.   We previously affirmed Eddie Alexander Long’s conviction.

United States v. Long, No. 03-4635 (4th Cir. Apr. 16, 2004)

(unpublished). The Supreme Court vacated our decision and remanded

Long’s case to us for further consideration in light of United

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

          Long contends that the district court erred in sentencing

him under the mandatory guideline system based on its finding by a

preponderance of the evidence that he was an elected official. See

U.S. Sentencing Guidelines Manual § 2C1.7(b)(1)(B) (2002).       Long

also asserts that he should be resentenced because the district

court treated the guidelines as mandatory, and he could have

received a lesser sentence under the advisory guideline system.

           Because these claims were not raised in the district

court, we review for plain error.        United States v. Hughes, 401

F.3d 540, 547 (4th Cir. 2005).    After Booker, any fact (other than

a prior conviction), which is necessary to support a sentence

exceeding the maximum authorized by the facts established by the

jury verdict must be admitted by the defendant.     125 S. Ct. at 756.

Here, there was no factual dispute.       The defendant admitted, and

continues to admit, in his sworn testimony and his briefs, that he

was an elected official.   This dispute is a legal one--whether the




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guideline applies to the facts of his case.*    Thus, there was no

factual dispute and, correspondingly, no Sixth Amendment error

under Booker.

          The next issue is whether the court erred by applying the

sentencing guidelines as mandatory and whether Long can meet his

burden of showing that the error affected his substantial rights.

See United States v. White, 405 F.3d 208, 223 n.10 (4th Cir. 2005);

see also United States v. Olano, 507 U.S. 725, 734-35 (1993) (under

plain error test, defendant bears burden of proving that error

affected substantial rights).   In White, we held that treating the

guidelines as mandatory is plain error.    405 F.3d at 216-17.   We

declined to presume prejudice, however, id. at 219, 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.    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 to a

different sentence had the guidelines been advisory instead of



     *
      Long contends that the policies underlying the guideline will
not be furthered by application of the guideline in his case.

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mandatory,    we   concluded   that   the   error   did   not   affect   the

defendant’s substantial rights. Id. at 225. Thus, we affirmed the

sentence.    Id.

            Here, the court sentenced Long in the middle of the

applicable range and did not indicate that it would have given him

a lower sentence had it not been constrained by the guidelines.

The record provides no reason to believe that the court would have

altered its sentence had the guidelines been advisory at the time.

Thus, like in White, Long cannot show that the error affected his

substantial rights.

            Accordingly, we reinstate our April 16, 2004 opinion and

affirm Long’s sentence after our reconsideration in light of

Booker.     We deny the Government’s motion to remand.          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.



                                                     OPINION REINSTATED;
                                                       SENTENCE AFFIRMED




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