                             UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                             No. 04-4063



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

          versus


ROBERT SLUSARCZYK, JR.,

                                              Defendant - Appellant.



Appeal from the United States District Court for the Southern
District of West Virginia, at Huntington. Joseph Robert Goodwin,
District Judge. (CR-03-102)


Submitted:     May 9, 2005                  Decided:   July 28, 2005


Before LUTTIG, MOTZ, and KING, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Jacqueline A. Hallinan, HALLINAN LAW OFFICES, P.L.L.C., Charleston,
West Virginia, for Appellant. Kasey Warner, United State Attorney,
Stephanie L. Haines, Assistant United States Attorney, Huntington,
West Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

          Robert Slusarczyk, Jr. appeals his conviction and 200

month sentence after he pleaded guilty to one count of possession

of a firearm after having been convicted of a crime punishable by

more than one year of imprisonment, in violation of 18 U.S.C.

§ 922(g)(1) (2000).   Counsel has filed a brief in accordance with

Anders v. California, 386 U.S. 738 (1967), raising one potential

issue but stating that, in her view, there are no meritorious

grounds for appeal.   Slusarczyk was notified of his right to file

a pro se supplemental brief, but has not filed a brief.   After the

Supreme Court issued its decision in United States v. Booker, 125

S. Ct. 738 (2005), counsel for Slusarczyk filed a supplemental

brief and a motion to remand for resentencing.       The Government

responded that it did not oppose remand.   Because we find no plain

error in the determination or imposition of Slusarczyk’s sentence,

we deny the motion to remand and affirm.

          In Booker, the Supreme Court applied the rationale of

Blakely v. Washington, 124 S. Ct. 2531 (2004), to the federal

sentencing guidelines and held that the mandatory guidelines scheme

that provided for sentence enhancements based on facts found by the

court violated the Sixth Amendment.    Booker, 125 S. Ct. at 746-48,

755-56 (Stevens, J., opinion of the Court). The Court remedied the

constitutional violation by severing and excising the statutory

provisions that mandate sentencing and appellate review under the


                               - 2 -
guidelines, thus making the guidelines advisory.            Id. at 756-57

(Breyer, J., opinion of the Court). Subsequently, in United States

v. Hughes, 401 F.3d 540, 546 (4th Cir. 2005), this court 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 by a jury (or, in a guilty plea case, admitted by the

defendant), constitutes plain error that 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.       The court 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. 2004), and impose a

sentence.      If the court imposes a sentence outside the guideline

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

Id. at 546.

            Because Slusarczyk did not object to the sentencing range

of 188 to 235 months’ imprisonment set forth in the presentence

report ("PSR") and adopted by the district court, this Court’s

review of the district court’s sentence is for plain error. United

States v. Olano, 507 U.S. 725, 732 (1993); Hughes, 401 F.3d at 547.

Under the plain error standard, Slusarczyk must show: (1) there was

error; (2) the error was plain; and (3) the error affected his


                                   - 3 -
substantial rights.       Olano, 507 U.S. at 732-34.           Even when these

conditions are satisfied, this court may exercise its discretion to

notice   the    error   only   if   the   error   "seriously    affect[s]   the

fairness, integrity or public reputation of judicial proceedings."

Id. at 736. (internal quotation marks omitted).

            In determining whether error occurred in Slusarczyk’s

sentencing, we note that 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, . . . and an error in failing to treat the guidelines as

advisory.”      Hughes, 401 F.3d at 552.          We first consider whether

Slusarczyk’s sentence was affected by a Sixth Amendment error.

Slusarczyk’s base offense level was calculated at thirty-four based

on his status as an armed career criminal,1 and the fact that he

possessed firearms in connection with a crime of violence.2

Pursuant to U.S. Sentencing Guidelines Manual (“USSG”) § 4B1.4(a)

(2003), an individual subject to an enhanced sentence under 18

U.S.C.A. § 924(e) (West 2000 & Supp. 2004), is an armed career

criminal.      Section 924(e) provides as follows: "in the case of a


     1
      Slusarczyk  has   never  contested   any   aspect  of   the
determination that he qualified for sentencing as an armed career
criminal.
     2
      If the enhancement for possession of the firearm in
conjunction with a crime of violence did not apply, Slusarczyk’s
base offense level under the armed career criminal classification
would   be   thirty-three,    rather   than   thirty-four.   USSG
4B1.4(b)(3)(B).

                                     - 4 -
person who violates [§] 922(g) . . . and has three previous

convictions . . . for a violent felony or a serious drug offense,

or both, committed on occasions different from one another . . .

such person shall be . . . imprisoned not less than fifteen years.

. . ."   The indictment alleged that, at the time of the crime in

question,   Slusarczyk     had   previously    been   convicted    of   three

aggravated burglaries and one robbery.             The PSR reveals that

Slusarczyk has five prior convictions for burglary, an offense

explicitly deemed a "violent felony" for purposes of § 924(e), and

one conviction for robbery.        See 18 U.S.C.A. § 924(e)(2)(B)(ii).

We thus conclude that Slusarczyk’s classification as an armed

career   criminal   did   not    violate    Slusarczyk’s   Sixth   Amendment

rights, as the facts supporting that classification were charged in

the indictment and acknowledged in Slusarczyk’s guilty plea.

            Pursuant to USSG § 4B1.4(b)(3)(A), the offense level for

an armed career criminal who "used or possessed the firearm . . .

in connection with . . . a crime of violence . . ." is thirty-four.

Section 4B1.2(a) specifically lists burglary of a dwelling as a

crime of violence.        The criminal history category for an armed

career criminal who "used or possessed the firearm . . . in

connection with . . . a crime or violence. . . ." is Category VI.

USSG § 4B1.4(c)(2).3      Slusarczyk received a three-level reduction


     3
      Slusarczyk’s extensive criminal history resulted in a total
of thirty criminal history points, which yields a criminal history
category of VI regardless of his status as an armed career

                                    - 5 -
for acceptance of responsibility, resulting in a total offense

level   of   thirty-one.            This   offense       level,      combined    with    his

criminal history category of VI, yielded a sentencing range of 188

to 235 months’ imprisonment.               See USSG Ch. 5, Pt. A.

             The    facts     supporting         the    one-level      enhancement       for

possession of the firearm in connection with a burglary were not

charged in the indictment.                 If this enhancement were removed,

Slusarczyk’s       total      offense      level       would    be    thirty,     and    his

sentencing range 168 to 210 months.                At the plea hearing, however,

Slusarczyk stated that he and two other people burglarized houses

and that he knew that an accomplice put a stolen gun in the trunk

of Slusarczyk’s vehicle.            In addition, Slusarczyk acknowledged the

truth of the prosecutor’s summary of the factual basis for the plea

that    included     a   description        of    the    burglaries      and     theft   of

firearms.          Moreover,        the    imposed       sentence      of   200     months

imprisonment is within the 168 to 210 month range that would apply

in the absence of the one-level enhancement.                      We conclude that the

one-level enhancement was based upon facts admitted by Slusarczyk,

and he therefore suffered no Sixth Amendment violation in the

calculation of his sentencing range.

             In his supplemental brief, Slusarczyk asserts error in

the    application       of   the    guidelines        as   a   mandatory       sentencing

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


criminal.

                                           - 6 -
2005), this court determined that “even in the absence of a Sixth

Amendment violation, the imposition of a sentence under the former

mandatory guidelines regime rather than under the advisory regime

outlined in Booker is error” that is plain.             Id. at 216-17.     The

court also concluded that, to satisfy the third prong of the plain

error test, an appellant must demonstrate actual prejudice. Id. at

217-23. White could not satisfy this requirement, however, because

he could not establish that the application of the guidelines as

mandatory had an effect on “the         district court’s selection of the

sentence imposed.”      Id. at 223 (quoting Williams v. United States,

503 U.S. 193, 203 (1992)).

            Slusarczyk asserts that the district court indicated that

it would possibly have imposed a lesser sentence under an advisory

scheme,    based   upon    comments     by     the   district   court    after

Slusarczyk’s sentence was announced.            Our review of the district

court’s remarks leads us to conclude that the district court’s

statements do not support Slusarczyk’s argument, but would rather

require speculation by this Court to determine whether the district

court    would   have   imposed   a   lesser    sentence   by   treating   the

guidelines as advisory.       White, 405 F.3d at 223.           Accordingly,

Slusarczyk cannot demonstrate that the district court’s error4 in




     4
      We of course offer no criticism of the district court judge,
who followed the law and procedure in effect at the time of
Slusarczyk’s sentencing.

                                      - 7 -
sentencing him pursuant to a mandatory guidelines scheme affected

his substantial rights.

            As required by Anders, we have examined the entire record

and find no meritorious issues for appeal.           Accordingly, we deny

Slusarczyk’s   motion   to   remand   and   affirm   his   conviction   and

sentence.    This court requires that counsel inform her 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 a 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




                                 - 8 -
