                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 04-5030



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

          versus


WILLIAM TERRENCE CROSS, a/k/a Red,

                                              Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Rebecca Beach Smith, District
Judge. (CR-03-10)


Submitted:   September 30, 2005        Decided:     December 16, 2005


Before WILKINSON, TRAXLER, and SHEDD, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Joseph R. Winston, LAW OFFICES JOSEPH RYLAND WINSTON, Richmond,
Virginia, for Appellant. Paul J. McNulty, United States Attorney,
Michael J. Elston, Laura P. Tayman, Assistant United States
Attorneys, Alexandria, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

           William       Terrence   Cross    was     convicted       by   a    jury   of

tampering with a witness, in violation of 18 U.S.C. § 1512(b)(1)

(2000),   and     retaliating    against     a     witness,     in    violation       of

§   1513(b)(2)    (2000).       Although     the     district    court        initially

sentenced him to 100 months of imprisonment, this court vacated and

remanded for resentencing.          United States v. Cross, 371 F.3d 176

(4th Cir. 2004).      In Cross, decided prior to the Supreme Court’s

ruling in Blakely v. Washington, 542 U.S. 296 (2004), we held that,

in applying United States Sentencing Guidelines Manual (“USSG”)

§ 2X3.1 (2002), the Accessory After the Fact guideline, “the base

offense   level    for    a   drug-related       ‘underlying     offense’       should

include any increase based on the quantity of drugs involved,

without regard to whether the defendant knew, or reasonably should

have known, the amount involved.”                Cross, 371 F.3d at 182.              On

remand, the district court, applying USSG § 2X3.1 as mandated by

this   court,     resentenced    Cross      to   a   term   of   168      months      of

imprisonment.      The district court further stated that it would

impose the same sentence based on the factors set forth in 18

U.S.C.A. § 3553(a) (West 2000 & Supp. 2005), even if the guidelines

were merely advisory.

           On appeal, Cross argues, pursuant to United States v.

Booker, 125 S. Ct. 738 (2005), and Blakely, that he was sentenced

in violation of his Sixth Amendment rights, and that the district


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court erred in treating the guidelines as mandatory. Because Cross

preserved the Sixth Amendment issue by objecting to his sentence

under Blakely below, review is de novo.     United States v. Mackins,

315 F.3d 399, 405 (4th Cir. 2003).     In Booker, the Supreme Court

held that the mandatory manner in which the federal sentencing

guidelines required courts to impose sentencing enhancements based

on facts found by the court by a preponderance of the evidence

violated the Sixth Amendment.      125 S. Ct. at 756.         The Court

remedied the constitutional violation by severing two statutory

provisions, 18 U.S.C.A. § 3553(b)(1) (West Supp. 2005) (requiring

sentencing courts to impose a sentence within the applicable

guideline range), and 18 U.S.C.A. § 3742(e) (West 2000 & Supp.

2005) (setting forth appellate standards of review for guideline

issues), thereby making the guidelines advisory.         Id. at 756-67.

          In Cross, we determined that the application of USSG

§ 2X3.1 was proper and that application of the guideline required

using the base offense for the drug-related underlying offense

regardless of whether Cross knew, or reasonably should have known,

the amount involved.   371 F.3d at 182.    Because at resentencing the

district court merely applied the guideline as mandated and made no

factual determinations regarding drug quantity in doing so, we find

no Sixth Amendment error.

          Cross also claims that he is entitled to a new sentencing

under an advisory guidelines scheme.      We disagree.    Under either a


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plain error or harmless error standard of review, in light of the

identical alternative sentence set forth by the district court, we

conclude that no reversible error occurred.   See United States v.

White, 405 F.3d 208, 223 (4th Cir. 2005) (noting that substantial

rights inquiry under plain or harmless error is the same and that

only difference is who bears burden of proof).

          Accordingly, we affirm Cross’ sentence.   We further find

the arguments Cross presents in his pro se brief and supplements

without merit.   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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