                             UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                             No. 05-4079



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

          versus


CARLOS ORELLANA,

                                              Defendant - Appellant.



Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. James A. Beaty, Jr.,
District Judge. (CR-04-360)


Submitted:   June 24, 2005                 Decided:   July 25, 2005


Before WILKINSON and MOTZ, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


Brian M. Aus, Durham, North Carolina, for Appellant. Anna Mills
Wagoner, United States Attorney, Angela H. Miller, 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Unpublished opinions are not binding precedent in this circuit.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:

              Following a guilty plea to possession of a firearm by an

illegal alien, in violation of 18 U.S.C. §§ 922(g)(5), 924(a)(2)

(2000), Carlos Orellana was sentenced to thirteen months in prison.

Orellana appeals, arguing that he is entitled to resentencing

because     the   district    court    treated    the   federal       sentencing

guidelines as mandatory in determining his sentence.                     Because

Orellana asserts this claim for the first time on appeal, we review

for plain error.       Fed. R. Crim. P. 52(b); United States v. Olano,

507 U.S. 725, 731 (1993); United States v. White, 405 F.3d 208, 215

(4th Cir. 2005).

              In White, this court held that treating the guidelines as

mandatory was error and that the error was plain.            405 F.3d at 215-

17.   The court declined to presume prejudice, id. at 217-22, and

held that the “prejudice inquiry, therefore, is . . . whether after

pondering all that happened without stripping the erroneous action

from the whole, . . . the judgment was . . . substantially swayed

by the error.”     Id. at 223 (internal quotation marks and citations

omitted).      To make this showing, a defendant must “demonstrate,

based on the record, that the treatment of the guidelines as

mandatory caused the district court to impose a longer sentence

than it otherwise would have imposed.”            Id. at 224.     Because the

record in White provided no nonspeculative basis suggesting that

the   court    would   have   sentenced   the    defendant   to   a    different


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sentence had the court sentenced under an advisory guidelines

scheme, this court concluded that the error did not affect the

defendant’s substantial rights.          Id. at 225.      Thus, the court

affirmed the sentence.     Id.

             Here, the district court noted that it adopted the

presentence report and the guideline application without change,

that its sentence was within the guideline range, and that it found

no reason to depart from the guideline range in imposing sentence.

We find that the record in this case contains no nonspeculative

basis on which we could conclude that the district court would have

sentenced Orellana to a lesser sentence had the court proceeded

under an advisory guideline scheme.            Id. at 223.    We therefore

conclude that Orellana has failed to demonstrate that the plain

error   in   sentencing   him    under   a   mandatory   guidelines   scheme

affected his substantial rights.

             Accordingly, we affirm Orellana’s 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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