                             UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                             No. 04-4537



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

          versus


HUMBERTO VALLE,

                                              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-03-448)


Submitted:   June 30, 2005                 Decided:   August 2, 2005


Before MOTZ, KING, and DUNCAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


David B. Freedman, WHITE & CRUMPLER, Winston-Salem, North Carolina,
for Appellant. Anna Mills Wagoner, United States Attorney, Sandra
J. Hairston, 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Unpublished opinions are not binding precedent in this circuit.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:

          Humberto Valle pled guilty to conspiracy to distribute

more than five kilograms of cocaine hydrochloride, in violation of

21 U.S.C. § 846 (2000).       He was sentenced to the statutory

mandatory minimum term of 120 months of imprisonment.              See 21

U.S.C. § 841(b)(1)(A) (2000).    Valle appeals his sentence.

          Valle argues that the district court erred in applying

the federal sentencing guidelines as mandatory in violation of

United States v. Booker, 125 S. Ct. 738 (2005).          Because Valle did

not object to his sentence in the district court on these grounds,

our review is for plain error.    United States v. Hughes, 401 F.3d

540, 547 (4th Cir. 2005).   To demonstrate plain error, Valle must

establish that error occurred, that it was plain, and that it

affected his substantial rights.      Id. 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.”        Id. at 555 (internal

quotation marks and citation omitted).

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

2005), we held that treating the guidelines as mandatory was error

and that the error was plain.    However, in the absence of a Sixth

Amendment violation prejudice is not presumed, and the defendant


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bears the burden of showing that the error in application of the

then-mandatory guidelines affected the outcome of the district

court proceedings.     Id. at 223.   We find Valle fails to meet this

burden because he was sentenced to the statutory mandatory minimum

term of imprisonment, and thus the mandatory application of the

guidelines had no effect on his actual sentence.

           Accordingly, we affirm Valle’s 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




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