                             UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                             No. 04-4617



UNITED STATES OF AMERICA,

                                                Plaintiff - Appellee,

          versus


ELADIO SOTO-NAVARRO,

                                               Defendant - Appellant.



Appeal from the United States District Court for the District of
South Carolina, at Anderson. Henry F. Floyd, District Judge. (CR-
04-538)


Submitted:   July 20, 2005                 Decided:   November 8, 2005


Before NIEMEYER, GREGORY, and SHEDD, Circuit Judges.


Affirmed in part; dismissed in part by unpublished per curiam
opinion.


James  Barlow   Loggins, Assistant    Federal   Public  Defender,
Greenville, South Carolina, for Appellant.    Jonathan S. Gasser,
Acting United States Attorney, Maxwell Cauthen, Assistant United
States Attorney, Greenville, South Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Eladio Soto-Navarro appeals from his forty-six-month

sentence imposed following his guilty plea to reentry by a deported

alien, in violation of 8 U.S.C. § 1326(a) (2000).          Soto-Navarro’s

counsel filed a brief pursuant to Anders v. California, 386 U.S.

738 (1967), stating that there were no meritorious issues for

appeal, but addressing whether the district court erred in denying

Soto-Navarro’s motion for a downward departure in his sentence.

Counsel subsequently filed a supplemental brief addressing the

impact of     United States v. Booker, 125 S. Ct. 738 (2005).           The

Government has responded.     Although informed of his right to file

a pro se brief, Soto-Navarro has not done so.

            Soto-Navarro first claims that the court erred when it

denied his motion for a downward departure based on cultural

assimilation.     Because   the   district   court   was   aware   of   its

authority to depart and declined to do so, the decision not to

depart is not reviewable on appeal.       See United States v. Bayerle,

898 F.2d 28, 30-31 (4th Cir. 1990).       Accordingly, we dismiss this

portion of the appeal.

            Next, Soto-Navarro argues that he was sentenced under a

mandatory application of the federal sentencing guidelines, in

violation of Booker.     Because Soto-Navarro did not object below to

the mandatory application of the sentencing guidelines, appellate

review is for plain error. United States v. White, 405 F.3d 208, 215


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(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 an error affected the

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

of sentencing a defendant under a mandatory guidelines regime” was

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).

             In this case, the court imposed the same forty-six-month

sentence as an alternate sentence in the event the guidelines were

found unconstitutional.        Soto-Navarro 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.       Accordingly, we find that the district court’s



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error of sentencing Soto-Navarro under a mandatory guidelines scheme

did not affect his substantial rights.

          As required by Anders, we have reviewed the entire record

and have found no meritorious issues for appeal.       We therefore

affirm Soto-Navarro’s conviction and sentence.       We dismiss the

appeal as to Soto-Navarro’s appeal of the denial of his motion for

a downward departure.   This court requires that counsel inform his

client, in writing, of his right to petition the Supreme Court of

the United States for further review.    If the client requests that

a petition be filed, but counsel believes that such a petition

would be frivolous, then counsel may move in this court for leave

to withdraw from representation.   Counsel’s motion must state that

a copy thereof was served on the client.      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 IN PART; DISMISSED IN PART




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