                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 05-4153



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

          versus


CHRISTOPHER BRIAN AUSTIN,

                                              Defendant - Appellant.



Appeal from the United States District Court for the District of
South Carolina, at Charleston. David C. Norton, District Judge.
(CR-04-299)


Submitted:   May 5, 2006                   Decided:   July 20, 2006


Before LUTTIG1 and MICHAEL, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


Hervery B. O. Young, Assistant Federal Public Defender, Greenville,
South Carolina, for Appellant. Jonathan S. Gasser, United States
Attorney, Carlton R. Bourne, Jr., Assistant United States Attorney,
Charleston, South Carolina, for Appellee.




     1
      Judge Luttig was a member of the original panel but did not
participate in this decision. This opinion is filed by a quorum of
the panel pursuant to 28 U.S.C. § 46(d).
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).




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PER CURIAM:

            Christopher Austin appeals the 147-month sentence imposed

after he pleaded guilty, pursuant to a plea agreement, to one count

of attempted manufacture of methamphetamine, in violation of 21

U.S.C. § 841(a)(1), (b)(1)(C) (2000), and one count of possession

of a firearm in furtherance of a drug trafficking crime, in

violation of 18 U.S.C. § 924(c) (2000).         We affirm.

            Austin first asserts that he did not validly waive his

right to appeal his sentence in the plea agreement.                We review

whether a defendant validly waived the right to appeal de novo by

examining the totality of the circumstances.             United States v.

Blick, 408 F.3d 162, 168-69 (4th Cir. 2005).             Although the plea

agreement includes a very broad waiver of Austin’s right to contest

sentencing issues, we conclude that, with regard to the Guidelines2

enhancement for creating a substantial risk of harm to a minor, the

waiver is not valid.

            Austin next argues that the Government breached the plea

agreement   by   having   an    agent   available   to   testify   to   facts

supporting the enhancement for substantial risk of harm to a minor.

Austin did not object to the Government presenting the witness at

sentencing, and he must therefore demonstrate plain error before he

can obtain any relief.         See United States v. Fant, 974 F.2d 559,

562 (4th Cir. 1992) (applying plain error analysis in context of


     2
      U.S. Sentencing Guidelines Manual (2003).

                                    - 3 -
breach of plea agreement).             In order to do so, Austin must

establish the breach was “‘so obvious and substantial that failure

to notice and correct it affect[ed] the fairness, integrity or

public reputation of the judicial proceedings.’” United States v.

McQueen, 108 F.3d 64, 66 (4th Cir. 1997) (quoting Fant, 974 F.2d at

565).    Our review of the record convinces us that the Government

did not breach the plea agreement by responding to the district

court’s questions at sentencing.

            Austin next argues that his sentence was imposed in

violation of United States v. Booker, 543 U.S. 220 (2005).               He

first asserts that the six-level enhancement of his offense level

for creating a substantial risk of harm to a minor was imposed

based upon facts found by the district court, in violation of his

Sixth Amendment rights.       He also argues that the district court

erred in sentencing him pursuant to a mandatory Guidelines scheme.

The Government responds that, because Austin did not assert a

specific objection pursuant to Blakely v. Washington, 542 U.S. 296

(2004), at sentencing, this issue is reviewed for plain error.           We

recently    held   that   a   timely    Blakely   objection   asserted   at

sentencing was sufficient to preserve a claim of error under

Booker. United States v. Rodriguez, 433 F.3d 411, 415-16 (4th Cir.

2006).   We find that counsel’s assertion of a Blakely objection at

sentencing was sufficient to preserve his assignment of Booker

error.     We thus review Austin’s assertions of sentencing error


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under the harmless error standard.         Rodriguez, 433 F.3d at 416.        In

harmless error review, the “defendant is entitled to relief if an

error has affected his substantial rights,” and the burden is on

the    Government     to   show   that   any   error    did   not   affect   the

defendant’s substantial rights.          Id.

              In United States v. Hughes, 401 F.3d 540 (4th Cir. 2005),

we held that a sentence that was imposed under the pre-Booker

mandatory sentencing scheme and was enhanced based on facts found

by the court, not by a jury, constitutes plain error that affects

the defendant’s substantial rights and warrants reversal under

Booker when the sentence “exceeded the maximum allowed based on the

facts found by the jury alone” and the record does not disclose

what discretionary sentence the district court would have imposed

under an advisory guideline scheme.            Hughes, 401 F.3d at 546-47,

556.     We    have   also   recognized    that   the    application    of   the

Guidelines as a mandatory determinant in sentencing is error that

is plain.     United States v. White, 405 F.3d 208, 216-17 (4th Cir.),

cert. denied, 126 S. Ct. 668 (2005).           The Government asserts that

any error is harmless in light of the district court’s announcement

of an identical alternate sentence.

              In United States v. Revels, __ F.3d __, 2006 WL 1134148

(4th Cir. May 1, 2006), we concluded that a Sixth Amendment error

was harmless because the error did not affect the outcome of the

proceeding, based on the district court’s announcement of an


                                     - 5 -
identical alternate sentence after considering the Guidelines as

advisory only.   Id. at *3.     In this case, as in Revels, the

district court announced an alternate sentence identical in all

respects to the sentence imposed.   We therefore conclude that any

error in Austin’s sentence is harmless.

          Accordingly, we affirm Austin’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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