                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 08-4409


UNITED STATES OF AMERICA,

                  Plaintiff – Appellee,

             v.

NATHAN SOLOMON, a/k/a Bradley Allen Van Petten,

                  Defendant – Appellant.



Appeal from the United States District Court for the District of
South Carolina, at Florence.   Terry L. Wooten, District Judge.
(4:03-cr-00602-TLW-1)


Submitted:    May 28, 2009                  Decided:   July 20, 2009


Before TRAXLER, Chief Judge, and NIEMEYER and MICHAEL, Circuit
Judges.


Affirmed by unpublished per curiam opinion.


Kathy Price Elmore, ORR, ELMORE & ERVIN, LLC, Florence, South
Carolina, for Appellant.      W. Walter Wilkins, United States
Attorney, Rose Mary Parham, Carrie A. Fisher, Assistant United
States Attorneys, Florence, South Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

            Nathan Solomon pled guilty to conspiracy to file a

false claim in connection with a firearms purchase, in violation

of 18 U.S.C. §§ 371 & 922(a)(6) (2006), and filing a false claim

on a firearms purchase application, in violation of 18 U.S.C.

§ 922(a)(6).         The    district       court       sentenced    Solomon     to   120

months’ imprisonment on the conspiracy count and twenty months’

imprisonment        on     the     false     claim        count,    to     be     served

consecutively.       Solomon noted his appeal in conformity with the

district court’s order permitting a belated appeal.

            Solomon first alleges that the district court erred in

enhancing his base offense level four levels pursuant to U.S.

Sentencing     Guidelines        Manual      (“USSG”)       § 2K2.1(b)(5)        (2002).

Because Solomon’s claim is raised for the first time on appeal,

it   is   subject    to    plain    error       review.     Plain    error      requires

Solomon to establish that: (1) there was error; (2) the error

was “plain;” and (3) the error affected his substantial rights.

United States v. Olano, 507 U.S. 725, 732 (1993).                           Even if he

makes this showing, “Rule 52(b) leaves the decision to correct

the forfeited error within the sound discretion of the court of

appeals,    and     the    court    should       not    exercise    that    discretion

unless the error ‘seriously affect[s] the fairness, integrity,

or public reputation of judicial proceedings.’”                       Id.       (quoting



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United States v. Young, 470 U.S. 1, 15 (1985)).                             Solomon fails

to establish plain error.

             In the 2002 version of the U.S. Sentencing Guidelines,

section 2K2.1(b)(5) provided for a four-level enhancement to a

defendant’s      base      offense    level      “[i]f       the     defendant   used   or

possessed any firearm or ammunition in connection with another

felony offense.”           USSG § 2K2.1(b)(5) (2002).                    Solomon admitted

paying a co-defendant with cocaine in exchange for purchasing

firearms.     Thus, Solomon fails to establish plain error by the

district    court     in    imposing       the   four-level          enhancement.       See

United States v. Washington, 528 F.3d 573, 574 (8th Cir. 2008).

             Solomon next argues that the district court committed

plain    error       in    sentencing        him      under        the     then-mandatory

sentencing guidelines.           This claim, also raised for the first

time on appeal, is likewise reviewed for plain error.                            When, as

here,    sentencing       preceded    United       States      v.     Booker,    543   U.S.

220 (2005),      a   defendant       can    show      that     the    district    court’s

erroneous application of the guidelines as mandatory affected

his     substantial        rights     only       if      the       record     reveals    a

“nonspeculative basis for concluding that the treatment of the

guidelines     as       mandatory      ‘affect[ed]           the      district    court’s

selection of the sentence imposed.’”                     United States v. White,

405 F.3d 208, 223 (4th Cir. 2005) (quoting Williams v. United

States, 503 U.S. 193, 203 (1992)).                    We have reviewed the record

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and conclude that there are no non-speculative grounds on which

to   conclude     that    the     district      court   would     have      imposed    a

different      sentence     under    a    discretionary        guidelines      system.

Therefore,      Solomon   fails     to    establish     that    the    error    by    the

district court affected his substantial rights. *                 Accordingly, we

affirm the judgment of the district court.                       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




       *
       We note that the district court’s error of treating the
guidelines as mandatory does not reflect adversely on the court,
as it followed established pre-Booker authority and practice.



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