                              UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                              No. 03-4936



UNITED STATES OF AMERICA,

                                                 Plaintiff - Appellee,

          versus


JUAN CARLOS    ESCAMILLA-VASQUEZ,    a/k/a    Jose
Estrada,

                                                Defendant - Appellant.


     On Remand from the Supreme Court of the United States.
                      (S. Ct. No. 04-6844)

                             ______________

Submitted:   July 28, 2006              Decided:     September 22, 2006


Before WILKINSON, MICHAEL, and SHEDD, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Thomas P. McNamara, Federal Public Defender, Raleigh, North
Carolina, for Appellant. Frank D. Whitney, United States Attorney,
Anne M. Hayes, Christine Witcover Dean, Assistant United States
Attorneys, Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Juan Carlos Escamilla-Vasquez pled guilty without benefit

of a plea agreement to reentering the United States after being

deported, 8 U.S.C. § 1326(a), (b)(2) (2000), and was sentenced to

a term of sixty months imprisonment.          Escamilla-Vasquez appealed

his sentence, alleging that the district court erred in calculating

his   criminal   history   under   U.S.    Sentencing   Guidelines   Manual

§ 4A1.1 (2002).      We affirmed the sentence.          United States v.

Escamilla-Vasquez, 104 F. App’x 285 (4th Cir. 2004) (No. 03-4936).

The Supreme Court later granted certiorari, vacated this court’s

judgment in light of United States v. Booker, 543 U.S. 220 (2005),

and remanded the case for further proceedings. We again affirm the

sentence.

            On remand, Escamilla-Vasquez argues that the district

court plainly erred under Booker in (1) applying the guidelines as

mandatory and (2) enhancing his sentence for a prior crime of

violence in violation of the Sixth Amendment when the indictment

did not charge that his prior breaking and entering conviction was

a burglary of a dwelling.1          The government contends that the


      1
      The government maintains that Escamilla-Vasquez waived any
claim of error under Booker by not raising a constitutional
objection at sentencing or in his initial brief.      Although the
Government correctly states the general rule, see United States v.
Al-Hamdi, 356 F.3d 564, 571 n.8 (4th Cir. 2004) (“It is a well
settled rule that contentions not raised in the argument section of
the opening brief are abandoned.”), we decline to enforce it in
light of our order directing the parties to file supplemental

                                   - 2 -
challenged enhancement is based on the fact of a prior conviction

and is thus outside the scope of Booker.2

             Under Booker, 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, 543 U.S. at 245.      Here, a “crime of violence,”

as used in § 2L1.2, is defined in the commentary to include

burglary of a dwelling, as well as “any offense under federal,

state, or local law that has as an element the use, attempted use,

or threatened use of physical force against the person of another.”

USSG § 2L1.2, comment. (n.1(B)(iii)).        Escamilla-Vasquez concedes

that an 8-level enhancement could have been correctly given in his




briefs addressing Booker. See United States v. Washington, 398
F.3d 306, 312 n.7 (4th Cir.) (stating that “[a]lthough appellate
contentions not raised in an opening brief are normally deemed to
have been waived ··· the Booker principles apply in this proceeding
because the [Supreme] Court specifically mandated that we must
apply [Booker] ··· to all cases on direct review.”) (internal
quotation marks and citations omitted), cert. denied, 125 S. Ct.
2558 (2005); United States v. James, 337 F.3d 387, 389 n.1 (4th
Cir. 2003) (“Because the court requested the additional briefing,
this case is not governed by our rule that arguments not raised in
the appellant's opening brief are typically deemed abandoned on
appeal.”), cert. denied, 540 U.S. 1134 (2004).
     2
      The government also asserts that Escamilla-Vasquez admitted
the fact of a prior crime of violence by not objecting to that
characterization of his breaking and entering conviction in the
presentence report. However, we held in United States v. Milam,
443 F.3d 382, 387 (4th Cir. 2006), that a defendant’s failure to
object to an enhancement recommended in the presentence report does
not constitute an admission for Booker purposes.

                                  - 3 -
case for a prior aggravated felony,3 but asserts that the district

court violated the Sixth Amendment by impliedly finding as a fact

that the prior breaking and entering was a crime of violence that

warranted a 16-level enhancement as recommended in the presentence

report.

              Although we have not addressed this issue in a published

opinion, other courts of appeals have held that application of the

enhancement does not violate the Sixth Amendment because the

enhancement is based on the fact of a prior conviction.        See United

States v. Cornelio-Pena, 435 F.3d 1279, 1288 (10th Cir.), cert.

denied, 126 S. Ct. 2366 (2006); United States v. Perez-Ramirez, 415

F.3d       876,   877   n.2   (8th   Cir.    2005);   United   States   v.

Camacho-Ibarquen, 410 F.3d 1307, 1315-16 (11th Cir.), cert. denied,

126 S. Ct. 457 (2005); United States v. Izaguirre-Flores, 405 F.3d

270, 273 n.9 (5th Cir.), cert. denied, 126 S. Ct. 253 (2005); see

also United States v. Cheek, 415 F.3d 349, 352-53 (4th Cir.)

(stating that Almendarez-Torres v. United States, 523 U.S. 224

(1998), was not overruled by Booker and remains the law), cert.

denied, 126 S. Ct. 640 (2005).          Thus, we conclude that no Sixth

Amendment violation occurred in this case.




       3
      “Aggravated felony,” as used here, has the same meaning as
the term is given in 8 U.S.C. § 1101(a)(43) (2000). USSG § 2L1.2,
comment. (n.3(A)). The term includes a burglary offense punishable
by a term of imprisonment of at least one year.          8 U.S.C.
§ 1101(a)(43)(G).

                                     - 4 -
           While   the    mandatory    application      of    the     guidelines

constitutes plain error, United States v. White, 405 F.3d 208, 217

(4th Cir.), cert. denied, 126 S. Ct. 668 (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)).

           The district court plainly erred in sentencing Escamilla-

Vasquez under the mandatory sentencing guidelines scheme.                White,

405 F.3d at 216-17.        However, in assessing whether Escamilla-

Vasquez’s substantial rights were affected, we note that the

district court sentenced him three months above the bottom of the

guideline range, but made no other comments regarding its selection

of the sentence imposed.        See id. at 223 (finding that defendant

failed to meet burden of demonstrating actual prejudice where “the

district court made certain statements suggesting that it was

content to sentence [the defendant] within the guideline range”).

Because the record contains no nonspeculative basis on which we

could   conclude   that   the    district     court   would    have    sentenced

Escamilla-Vasquez to a lower sentence had the court proceeded under

an advisory guideline scheme, we are satisfied that Escamilla-

Vasquez   has   failed    to    demonstrate    that   the     plain    error   in




                                    - 5 -
sentencing him under a mandatory guidelines scheme affected his

substantial rights.

           We therefore affirm the sentence imposed by 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




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