                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 04-4061



UNITED STATES OF AMERICA,


                                              Plaintiff - Appellee,

          versus


THOMAS AUGUSTIN,

                                              Defendant - Appellant.



         On Remand from the United States Supreme Court.
                       (S. Ct. No. 04-7728)


Submitted:   September 30, 2005        Decided:     November 29, 2005


Before WILKINSON, NIEMEYER, and SHEDD, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Richard F. Della Fera, ENTIN, DELLA FERA & GREENBERG, P.A., Fort
Lauderdale, Florida, for Appellant.     Gretchen C. F. Shappert,
United States Attorney, Melissa L. Rikard, Assistant United States
Attorney, Charlotte, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

               Thomas Augustin pled guilty to possession of fifty grams

or more of cocaine base (crack) and 500 grams or more of cocaine

with intent to distribute, 21 U.S.C. § 841(a) (2000), and was

sentenced to a term of 210 months imprisonment.                 We affirmed his

sentence and denied rehearing.             United States v. Augustin, No. 04-

4061, 2004 WL 1447924 (4th Cir. June 29, 2004) (unpublished).                  The

Supreme    Court       subsequently     granted    Augustin’s     petition    for

certiorari, vacated this court’s judgment, and remanded his case

for further proceedings in light of United States v. Booker, 125 S.

Ct. 738 (2005).

               Augustin was sentenced before the decisions in Booker and

its predecessor, Blakely v. Washington, 542 U.S. 296 (2004), and he

did not raise objections to his sentence based on the mandatory

nature    of    the    sentencing     guidelines   or   the    district    court’s

application of sentencing enhancements based on judicial fact

finding rather than facts he admitted.              Therefore, we review his

sentence for plain error.           United States v. Hughes, 401 F.3d 540,

547 (4th Cir. 2005). Augustin now contends that the district court

plainly erred under Booker in applying the guidelines as mandatory

and in enhancing his sentence for possession of a firearm during

the   offense,        pursuant   to    U.S.   Sentencing      Guidelines   Manual

§ 2D1.1(b)(1) (2003), because the enhancement violated the Sixth

Amendment.        With    respect     to   the   district     court’s   mandatory


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application     of    the   guidelines,     the     district     court     gave   no

indication that it would impose a lower sentence under an advisory

guideline     system.        Therefore,    Augustin       cannot    show    actual

prejudice, and resentencing is not authorized on this ground alone.

United States v. White, 405 F.3d 208, 223-24 (4th Cir. 2005).

             Augustin’s base offense level was 38 under § 2D1.1(c)(1)

(1.5 kilograms or more of crack).          He admitted responsibility for

more than 1.5 kilograms of crack.                 With the two-level weapon

enhancement     and    a    three-level    adjustment      for     acceptance     of

responsibility, his final offense level was 37.                  Augustin was in

criminal history category I, which gave him a guideline range of

210-262 months.         The district court imposed a sentence of 210

months. Without the enhancement for possession of a firearm during

the offense, Augustin’s offense level would have been 38 and the

guideline range, based on facts he admitted, would have been 235-

293 months.    For purposes of determining Booker error, we consider

the guideline range based on facts Augustin admitted before the

reduction for acceptance of responsibility.                    United States v.

Evans, 416 F.3d 298, 300 n.4 (4th Cir. 2005).              Augustin’s sentence

of   210   months    imprisonment   thus     does   not   exceed     the    maximum

authorized based on the facts he admitted.                 Id. at 300-01.         We

conclude that no Sixth Amendment violation occurred.

             We therefore affirm the sentence imposed by the district

court.     We dispense with oral argument because the facts and legal


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contentions are adequately presented in the materials before the

court and argument would not aid the decisional process.



                                                           AFFIRMED




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