                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 07-4984


UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

             v.

CARLOS LASHAN DAVIS,

                  Defendant - Appellant.



Appeal from the United States District Court for the Middle
District of North Carolina, at Durham.     James A. Beaty, Jr.,
Chief District Judge. (1:07-cr-00089-JAB-1)


Submitted:    June 9, 2009                  Decided:   August 26, 2009


Before MICHAEL, SHEDD, and DUNCAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Jeanette Doran Brooks, Raleigh, North Carolina, for Appellant.
Anna Mills Wagoner, United States Attorney, David P. Folmar,
Jr.,  Assistant   United States  Attorney,  Greensboro,  North
Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

                 Carlos Lashan Davis appeals his sentence imposed after

he pleaded guilty to distribution of cocaine base.                               On appeal,

Davis argues for the first time that the district court should

have considered the disparity in the sentencing ratio between

crack and powder cocaine and he should have received a lower

sentence based on this disparity.                         Davis was sentenced prior to

the   effective       date       of   Amendment       708.      Finding     no   error,   we

affirm. *

                 Because Davis did not argue below that he should be

sentenced below the advisory Guidelines range based upon the

crack/powder cocaine disparity in the Guidelines, review is for

plain error.          See United States v. Branch, 537 F.3d 328, 343

(4th Cir. 2008), cert. denied, 129 S. Ct. 943 (2009).                              Assuming

the   district        court’s         failure        to    consider   the    crack/powder

disparity constitutes error that was plain, it must still be

established that the error affected the defendant’s substantial

rights.      See id.        This court previously has “concluded that the

error of sentencing a defendant under a mandatory guidelines

regime      is    neither    presumptively            prejudicial     nor    structural,”

thereby      requiring       a    showing       of    “actual    prejudice.”         United

      *
       This case was placed in abeyance for United States v.
Antonio, 311 F. App’x 679, 2009 WL 430426 (4th Cir. 2009) (No.
07-4791) (unpublished).



                                                2
States v. White, 405 F.3d 208, 223 (4th Cir. 2005).                      Thus, the

burden is on the defendant to establish that the error “affected

the district court’s selection of the sentence imposed.”                   Id.

            Here, the record is entirely silent on this issue.

Because the record does not reveal a nonspeculative basis for

concluding that the district court would have imposed a shorter

sentence had it known it possessed the discretion to do so, we

conclude that Davis cannot demonstrate that the district court’s

failure    to   consider    the     crack/powder      disparity   affected       his

substantial rights.         We therefore affirm the sentence.              We note

that   this     decision     does    not       preclude   Davis   from     seeking

modification of his sentence pursuant to 18 U.S.C. § 3582(c) in

light of Amendment 706 to the U.S. Sentencing Guidelines.                        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




                                           3
