United States v. Gamble , 155 F. App'x 723 ( 2005 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-5011
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JOHN AUNDO GAMBLE,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Florence. Terry L. Wooten, District Judge.
(CR-04-150-TLW)
Submitted: October 14, 2005 Decided: December 1, 2005
Before NIEMEYER, MICHAEL, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Michael A. Meetze, Assistant Federal Public Defender, Florence,
South Carolina, for Appellant. Jonathan S. Gasser, Acting United
States Attorney, Rose Mary Parham, Assistant United States
Attorney, Florence, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
John Aundo Gamble appeals from his 240-month sentence
entered pursuant to his guilty plea to possession with intent to
distribute cocaine base, possession of a firearm by a convicted
felon, and use and carry of a firearm in furtherance of a drug
trafficking crime. He challenges his sentence under United
States v. Booker, 125 S. Ct. 738 (2005). We affirm.
Gamble first contends that the district court erred under
Booker by sentencing him as a career offender. Because Gamble did
not object below, his claim is reviewed for plain error. United
States v. Hughes, 401 F.3d 540, 547 (4th Cir. 2005). In Booker,
the Supreme Court found that the mandatory manner in which the
federal sentencing guidelines required courts to impose sentencing
enhancements based on facts found by the court by a preponderance
of the evidence violated the Sixth Amendment. Booker, 125 S. Ct.
at 746, 750. For a sentence imposed under the mandatory guidelines
system, the Court concluded that “[a]ny fact (other than a prior
conviction) which is necessary to support a sentence exceeding the
maximum authorized by the facts established by a plea of guilty
. . . must be admitted by the defendant.” Id. at 756.
Gamble contends that his career offender designation
required the district court to make improper factual findings.
However, he fails to point to any specific fact in dispute, and he
did not challenge any supporting facts in the district court. We
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have held that, where the facts are undisputed, the application of
the career offender enhancement falls within the exception for
prior convictions. United States v. Collins, 412 F.3d 515, 521-23
(4th Cir. 2005). Thus, there was no Sixth Amendment error in this
case.
Next, Gamble asserts that the district court erred by
sentencing him under the mandatory guidelines regime. Because
Gamble did not object to the mandatory application of the
guidelines, this claim is also reviewed for plain error. See
United States v. White, 405 F.3d 208, 215 (4th Cir. 2005). In
White, we considered whether treating the guidelines as mandatory
was plain error in light of Booker and held that it was. Id. at
216-17. While we concluded that the district court erred by
sentencing White under the mandatory guidelines scheme and that the
error was plain, we declined to presume prejudice, id. at 217-22,
and held that the “prejudice inquiry, therefore, is . . . whether
after pondering all that happened without stripping the erroneous
action from the whole, . . . the judgment was . . . substantially
swayed by the error.” Id. at 223. To make this showing, a
defendant must “demonstrate, based on the record, that the
treatment of the guidelines as mandatory caused the district court
to impose a longer sentence than it otherwise would have imposed.”
Id. at 224. Because the record provided no nonspeculative basis
for concluding that White would have received a shorter sentence
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under an advisory guidelines system, we determined that the error
did not affect White’s substantial rights and, thus, affirmed his
sentence. Id. at 225.
Here, Gamble cannot demonstrate that the court’s plain
error in sentencing him under a mandatory scheme affected his
substantial rights. While the district court did state that it was
bound by the guidelines and lacked authority to further depart, the
court did not sentence Gamble to the lowest sentence available
under the mandatory guidelines. In addition, the court indicated
that it would impose the same sentence under an advisory system.
Thus, the record provides no nonspeculative basis on which this
court could conclude that the error affected Gamble’s substantial
rights.
Accordingly, we affirm Gamble’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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