                              UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                              No. 03-4121



UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

          versus


ANDRE RICE,

                                              Defendant - Appellant.



                              No. 03-4233



UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

          versus


ANDRE RICE,

                                              Defendant - Appellant.



     On Remand from the Supreme Court of the United States.
                      (S. Ct. No. 04-8599)


Submitted:    July 19, 2006             Decided:   September 20, 2006


Before WILLIAMS, SHEDD, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.


James  Barlow   Loggins, Assistant    Federal   Public  Defender,
Greenville, South Carolina, for Appellant. Elizabeth Jean Howard,
OFFICE OF THE UNITED STATES ATTORNEY, Greenville, South Carolina,
for Appellee.


Unpublished opinions are not binding precedent in this circuit.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




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PER CURIAM:

                 Andre Rice pled guilty to conspiracy to possess with

intent to distribute cocaine base, in violation of 21 U.S.C. § 846

(2000).          He was sentenced to 210 months of imprisonment.           Rice’s

attorney filed a brief in accordance with Anders v. California, 386

U.S.       738    (1967),   stating   that,    in   his   view,   there   were   no

meritorious grounds for appeal, but raising an issue as to whether

the district court erred in denying Rice’s motion to withdraw his

guilty plea. Because the Rule 11 proceeding was adequate, and Rice

failed to provide a fair and just reason to withdraw his guilty

plea, we found no abuse of discretion by the district court in its

failure to allow the withdrawal.              Accordingly, we affirmed Rice’s

conviction and sentence.          See United States v. Rice, 85 F. App’x

336 (4th Cir. 2004) (Nos. 03-4121/4233).                  On March 21, 2005, the

Supreme Court granted Rice’s petition for a writ of certiorari,

vacated this court’s judgment, and remanded to this court for

further consideration in light of United States v. Booker, 543 U.S.

220 (2005).         Rice v. United States, 544 U.S. 917 (2005).           Prior to

the filing of supplemental briefs, the Government filed a consent

motion to remand.*

                 Rice’s sentence was imposed before the decisions in

Booker and its predecessor, Blakely v. Washington, 542 U.S. 296


       *
      Because we are able to determine from the record whether any
Booker error occurred, we have proceeded with the appeal without
requiring supplemental briefs.

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(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 facts not

admitted by him.      Therefore, we review his sentence for plain

error.     United States v. Hughes, 401 F.3d 540, 546-60 (4th Cir.

2005).

            Rice stipulated that he was responsible for at least 500

grams, but less than 1.5 kilograms of cocaine base.         Based on this

stipulation, the probation officer assessed, and the district court

applied, a base offense level of 36, pursuant to U.S. Sentencing

Guidelines Manual § 2D1.1(c)(2) (2001).        The district court also

applied an additional two level enhancement under USSG § 3C1.1 for

obstruction of justice because Rice failed to appear for his

sentencing. However, the probation officer gave Rice a three-level

reduction for acceptance of responsibility under USSG § 3E1.1(a),

(b).     Based on a total offense level of 35 and a criminal history

category of III, Rice’s guideline range was 210 to 262 months of

imprisonment.       The   court   sentenced   Rice   to   210   months   of

imprisonment.

            For purposes of determining Booker error, this court

considers the guideline range based on the facts the defendant

admitted before any adjustment for acceptance of responsibility.

United States v. Evans, 416 F.3d 298, 300 n.4 (4th Cir. 2005).

Using this calculation with criminal history category III, Rice’s


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offense level would have been 36 and his guideline range 235 to 293

months of imprisonment.           Because Rice’s sentence was below that

range, he cannot show plain error with respect to the two level

enhancement.

           While    the   mandatory     application       of    the   Sentencing

Guidelines constitutes plain error, United States v. White, 405

F.3d 208, 217 (4th Cir.), cert. denied, 126 U.S. 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 record

does not indicate that the district court wished to impose a

sentence   lower   than   the      210-month       sentence    Rice   was   given.

Therefore, he cannot show that he was prejudiced by the district

court’s erroneous application of the guidelines as mandatory.

           Accordingly,      we    affirm    the    sentence    imposed     by   the

district court and deny the motion to remand.                  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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