                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 03-4889



UNITED STATES OF AMERICA,

                                             Plaintiff - Appellee,

          versus


DARIAN TERRENCE HARRIS, a/k/a Darion Harris,
a/k/a Damien Russell, a/k/a Damion Russell,
a/k/a Darren Jackson, a/k/a Russell Damior,
a/k/a Michael Jones,

                                            Defendant - Appellant.


         On Remand from the United States Supreme Court.
                       (S. Ct. No. 04-9800)


Submitted:   September 28, 2005        Decided:     November 23, 2005


Before LUTTIG and SHEDD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Opinion reinstated; sentence affirmed by unpublished per curiam
opinion.


Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant.   Frank D. Whitney, United States Attorney, Anne M.
Hayes, Christine Witcover Dean, Assistant United States Attorneys,
Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            This case is before the court on remand from the Supreme

Court.     We previously affirmed Darian Harris’ conviction.                 United

States v. Harris, No. 03-4889, 2004 WL 2164941 (4th Cir. Sept. 21,

2004) (unpublished).       The Supreme Court vacated our decision and

remanded Harris’ case to us for further consideration in light of

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

            Harris     contends   that    the    district    court      erred   in

sentencing him under the mandatory guideline system based on its

finding by a preponderance of the evidence that he obstructed

justice.     See U.S. Sentencing Guidelines Manual § 3C1.1 (2002).

Because this claim was not raised in the district court, we review

for plain error.       United States v. Hughes, 401 F.3d 540, 547 (4th

Cir.   2005).     After    Booker,       any    fact   (other    than    a    prior

conviction), which is necessary to support a sentence exceeding the

maximum authorized by the facts established by the jury verdict

must be admitted by the defendant.             125 S. Ct. at 756.       Although

Harris initially objected to the enhancement, at sentencing, he

withdrew his objection and admitted to the facts in the presentence

report.     He further negotiated the specific sentence he in fact

received. Thus, there was no factual dispute and, correspondingly,

no Sixth Amendment error under Booker. With respect to whether the

district     court’s     mandatory    application       of      the   guidelines

constituted plain error, we find Harris has not established that


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the error in treating the guidelines as mandatory affected his

substantial rights.   See United States v. White, 405 F.3d 208,

215-25 (4th Cir. 2005).

          Accordingly, we reinstate our September 21, 2004 opinion

and affirm Harris’ sentence after our reconsideration in light of

Booker. 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.



                                              OPINION REINSTATED;
                                                SENTENCE AFFIRMED




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