                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 05-4065



UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

          versus


HERSHEL SMITH,

                                              Defendant - Appellant.



Appeal from the United States District Court for the Southern
District of West Virginia, at Charleston. David A. Faber, Chief
District Judge. (CR-04-122)


Submitted:   October 17, 2005             Decided:   November 1, 2005


Before WILKINSON, WILLIAMS, and GREGORY, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Donald L. Stennett, BREWSTER, MORHOUS, CAMERON, CARUTH, MOORE,
KERSEY & STAFFORD, PLLC, Charleston, West Virginia, for Appellant.
Charles T. Miller, Acting United States Attorney, John L. File,
Assistant United States Attorney, Beckley, West Virginia, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

          Hershel Smith appeals his 70-month sentence pursuant to

a guilty plea for possession of 41.1 grams of pseudoephedrine, in

violation of 21 U.S.C. § 841(c)(2) (2000).    His sole argument on

appeal is that a remand is warranted because he was sentenced under

a mandatory application of the federal sentencing guidelines, in

violation of United States v. Booker, 125 S. Ct. 738 (2005).     We

affirm Smith’s sentence.

          Because Smith did not object below to the mandatory

application of the guidelines, we review for plain error.    United

States v. White, 405 F.3d 208, 215 (4th Cir. 2005).   To demonstrate

plain error, a defendant must establish that error occurred, that

it was plain, and that it affected his substantial rights.      Id.

(citing United States v. Olano, 507 U.S. 725, 732 (1993)).     If a

defendant establishes these requirements, the court has discretion

to correct the error, but “should not exercise . . . [that

discretion] unless the error seriously affect[s] the fairness,

integrity or public reputation of judicial proceedings.”        Id.

(internal quotation marks and citation omitted).

          In White, this court determined that imposing a sentence

under the guidelines as mandatory was error that was plain. White,

405 F.3d at 217.   In determining whether this error affected the

defendant’s substantial rights, the court reasoned that “the error

of sentencing a defendant under a mandatory guidelines regime” was


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not an error for which prejudice would be presumed.     Id. at 221.

Rather, the defendant bears the burden of showing that this error

“affected the outcome of the district court proceedings.”    Id. at

223 (quoting Olano, 507 U.S. at 734).    We find that Smith fails to

meet this burden because he presents no non-speculative evidence or

argument demonstrating that he would have received a lower sentence

had the district court appreciated that the guidelines were not

mandatory.   We therefore conclude that the district court’s error

of sentencing Smith under a mandatory guidelines scheme did not

affect his substantial rights.

          Accordingly, we affirm Smith’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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