                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 04-4718



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

          versus

ANTONIO DEVON GUNTER,
                                              Defendant - Appellant.



Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. Frank W. Bullock, Jr.,
District Judge. (CR-04-31)


Submitted:   November 28, 2005            Decided:   January 3, 2006


Before WILKINSON, LUTTIG, and SHEDD, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Louis C. Allen, III, Federal Public Defender, John A. Dusenbury,
Jr., Assistant Federal Public Defender, Greensboro, North Carolina,
for Appellant. Anna Mills Wagoner, United States Attorney, Michael
Augustus DeFranco, 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Unpublished opinions are not binding precedent in this circuit.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:

            Antonio Devon Gunter pled guilty to possession of a

firearm by a convicted felon, in violation of 18 U.S.C. §§ 922(g),

924(a)(2) (2000).      The district court sentenced him to forty-six

months in prison.      Gunter’s attorney filed a brief pursuant to

Anders v. California, 386 U.S. 738 (1967), stating that in his

opinion     there   were    no   meritorious   issues   for   appeal,   but

questioning whether Gunter’s sentence violated the Sixth Amendment

because his sentence was enhanced based upon facts that were not

charged in the indictment, admitted by Gunter, or proven beyond a

reasonable doubt.          This court provided an opportunity for the

parties to submit supplemental briefing concerning the potential

impact of United States v. Booker, 125 S. Ct. 738 (2005).         Gunter’s

counsel filed a supplemental brief stating that the district court

erred by applying the Federal Sentencing Guidelines as mandatory.

Gunter has been informed of his right to file a pro se supplemental

brief, but he has not filed one.       We affirm Gunter’s conviction and

sentence.
            This court has identified two types of Booker error:          a

violation of the Sixth Amendment, and a failure to treat the

guidelines as advisory. United States v. Hughes, 401 F.3d 540, 552

(4th Cir. 2005).     A Sixth Amendment error occurs when the district

court imposes a sentence greater than the maximum permitted based

on facts found by a         jury or admitted by the defendant.     Booker,

125 S. Ct. at 756.     Because Gunter did not raise a Sixth Amendment

challenge or object to the mandatory application of the guidelines


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in the district court, review is for plain error.            Hughes, 401 F.3d

at 547.     To demonstrate plain error, an appellant must establish

that an error occurred, that it was plain, and that it affected his

substantial rights.      United States v. Olano, 507 U.S. 725, 731-32

(1993); Hughes, 401 F.3d at 547-48.             If an appellant meets 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.”                Hughes, 401 F.3d at 555
(internal quotation marks and citations omitted).

            Gunter    argues    that    his    sentence   violates   the    Sixth

Amendment because his offense level was increased four levels under

U.S.    Sentencing    Guidelines   Manual       §   2K2.1(b)(5)   (2003).      To

determine the guideline range free of enhancements, this court uses

the defendant’s “guideline range based on the facts he admitted

before adjusting that range for acceptance of responsibility.”

United States v. Evans, 416 F.3d 298, 300 n.4 (4th Cir. 2005).
Assuming without deciding that Gunter did not admit the facts that

gave rise to the § 2K2.1(b)(5) enhancement, if that four-level

enhancement is eliminated, as well as the three-level acceptance of

responsibility adjustment under USSG § 3E1.1(b), Gunter’s guideline

range (with offense level 20 and Criminal History Category II)

would be thirty-seven to forty-six months.                 USSG Ch. 5, Pt. A

(Sentencing Table).        Gunter’s sentence of forty-six months is



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within this guideline range.           Therefore, we find that no Sixth

Amendment violation occurred.       Evans, 416 F.3d at 300-01.

            Gunter also argues that the court erred by applying the

sentencing    guidelines    as    mandatory.       While    the    mandatory

application of the guidelines constitutes plain error, United

States v. White, 405 F.3d 208, 216-17 (4th Cir.), cert. denied, ___

U.S. ___, 2005 WL 3027841 (Nov. 14, 2005), a defendant who seeks

resentencing on this ground must show actual prejudice, i.e., a

“nonspeculative basis for concluding that the treatment of the

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

of the sentence imposed.’”       Id. at 223 (quoting Williams v. United
States, 503 U.S. 193, 203 (1992)).            Gunter failed to provide a

nonspeculative basis for suggesting that the court would have

sentenced    him   differently   had    the   guidelines   been   considered

advisory instead of mandatory.         We therefore find that the error

did not affect Gunter’s substantial rights.           White, 405 F.3d at

225; see also United States v. Collins, 412 F.3d 515, 524-25 (4th

Cir. 2005) (finding that defendant failed to demonstrate prejudice
from being sentenced under the mandatory sentencing guidelines).

Accordingly, Gunter is not entitled to resentencing on this basis.

            In accordance with Anders, we have reviewed the entire
record in this case and have found no meritorious issues for

appeal.     We therefore affirm Gunter’s conviction and sentence.

Counsel’s motion to withdraw is denied.          This court requires that

counsel inform his client, in writing, of his right to petition the

Supreme Court of the United States for further review.               If the


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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




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