                             UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                             No. 04-4134



UNITED STATES OF AMERICA,

                                                Plaintiff - Appellee,

          versus


CHANTE EZEQUIEL TAYLOR,

                                               Defendant - Appellant.


Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. N. Carlton Tilley, Jr.,
Chief District Judge. (CR-03-314)


Submitted:   July 29, 2005                 Decided:   October 11, 2005


Before MOTZ, TRAXLER, and GREGORY, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Anne R. Littlejohn, LAW OFFICE OF ANNE R. LITTLEJOHN, Greensboro,
North Carolina, for Appellant. Anna Mills Wagoner, United States
Attorney, Robert A. J. Lang, Assistant United States Attorney,
Greensboro, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

          Chante Ezequiel Taylor pled guilty to possession of a

firearm   by   a   convicted   felon,    in   violation   of   18   U.S.C.

§§ 922(g)(1), 924(a)(2) (2000).          The district court imposed a

guidelines sentence of 110 months’ imprisonment.          Taylor attacks

only his sentence on appeal and asserts his guidelines sentence was

imposed in violation of the Sixth Amendment under United States v.

Booker, 125 S. Ct. 738 (2005) (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).             Specifically,

Taylor claims that his Sixth Amendment rights were violated when

the district court enhanced his offense level four levels, pursuant

to U.S. Sentencing Guidelines Manual § 2K2.1(b)(5) (2003), because

Taylor possessed a firearm in connection with another felony

offense, namely possession with intent to sell or deliver cocaine.

          Because Taylor did not raise this issue below, our review

is for plain error.     To establish plain error, Taylor must show

that an error occurred, that the error was plain, and that the

error affected his substantial rights. United States v. Olano, 507

U.S. 725, 732 (1993).    Even if Taylor makes this showing, we will

correct the error only if it “seriously affect[s] the fairness,

integrity or public reputation of judicial proceedings.”              Id.

(internal citations omitted).


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               To establish that a Sixth Amendment error occurred in his

sentencing, Taylor must show that the district court imposed a

sentence exceeding the maximum allowed based only on the facts he

admitted.       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.”).                Assuming that

Taylor did not admit that he possessed a firearm in connection with

another felony offense, and the challenged four point enhancement

is disregarded, Taylor’s maximum total offense level would have

been twenty-four rather than twenty-eight.* Based on offense level

twenty-four and Taylor’s criminal history category of VI, Taylor’s

sentencing range would have been 100 to 125 months without the

challenged four point enhancement. Taylor’s sentence of 110 months

fell squarely within that range. Because Taylor’s sentence did not

exceed the maximum authorized by the facts of the offense to which

he pled guilty, no Sixth Amendment violation occurred.




        *
      As in United States v. Evans, 416 F.3d 298 (4th Cir. 2005),
for purposes of determining whether a Sixth Amendment violation
occurred, the sentence imposed on Taylor is compared against the
guideline range that was properly determined (thus not considering
the challenged four point enhancement) before that range was
adjusted to account for the three-point reduction in offense level
Taylor received for acceptance of responsibility.

                                       - 3 -
             To the extent Taylor argues that the district court’s

treatment    of   the   sentencing      guidelines         as    mandatory    requires

resentencing, this claim also fails. Because Taylor did not object

to the application of the sentencing guidelines as mandatory,

appellate review is for plain error.                United States v. White, 405

F.3d 208, 215 (4th Cir. 2005).          In White, we held with regard to a

defendant whose appeal was pending when Booker was decided that it

was error, that was plain, for the district court to treat the

guidelines as mandatory.            Id. at 217.           However, to satisfy the

third prong of plain error analysis a defendant must show that he

was   actually    prejudiced.        Id.       at   223    (error   did    not    affect

substantial rights when court indicated it was content with the

guidelines range and sentence).

             Taylor has not demonstrated that the error of sentencing

him under the mandatory guidelines regime affected the outcome of

the district court proceedings.            The district court judge made no

statements at sentencing indicating that he wished to sentence

Taylor below the guideline range but that the guidelines prevented

him   from   doing    so.      In   addition,        the    district      court   judge

specifically noted at sentencing that “quite frankly, if the

sentencing    range     were   lower,      I    probably        would   not   consider

[sentencing Taylor at the low end of the guideline range] . . .

because of Mr. Taylor’s record.”                    The district court further

expressed that Taylor’s “record is not good” and that he should


                                      - 4 -
have received “more severe punishment for other crimes.”                    Given

these   comments    at   sentencing,    and    the   utter    absence    of   any

indication   that   the   district     court   would   have    given    a   lower

sentence had it been aware that application of the sentencing

guidelines was discretionary, Taylor fails to demonstrate that

application of the guidelines as mandatory affected his substantial

rights.   Therefore, we affirm Taylor’s 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




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