United States v. Orellana , 148 F. App'x 147 ( 2005 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4079
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
CARLOS ORELLANA,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. James A. Beaty, Jr.,
District Judge. (CR-04-360)
Submitted: June 24, 2005 Decided: July 25, 2005
Before WILKINSON and MOTZ, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Brian M. Aus, Durham, North Carolina, for Appellant. Anna Mills
Wagoner, United States Attorney, Angela H. Miller, Assistant United
States Attorney, Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Following a guilty plea to possession of a firearm by an
illegal alien, in violation of 18 U.S.C. §§ 922(g)(5), 924(a)(2)
(2000), Carlos Orellana was sentenced to thirteen months in prison.
Orellana appeals, arguing that he is entitled to resentencing
because the district court treated the federal sentencing
guidelines as mandatory in determining his sentence. Because
Orellana asserts this claim for the first time on appeal, we review
for plain error. Fed. R. Crim. P. 52(b); United States v. Olano,
507 U.S. 725, 731 (1993); United States v. White, 405 F.3d 208, 215
(4th Cir. 2005).
In White, this court held that treating the guidelines as
mandatory was error and that the error was plain. 405 F.3d at 215-
17. The court 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 (internal quotation marks and citations
omitted). 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 in White provided no nonspeculative basis suggesting that
the court would have sentenced the defendant to a different
- 2 -
sentence had the court sentenced under an advisory guidelines
scheme, this court concluded that the error did not affect the
defendant’s substantial rights. Id. at 225. Thus, the court
affirmed the sentence. Id.Here, the district court noted that it adopted the
presentence report and the guideline application without change,
that its sentence was within the guideline range, and that it found
no reason to depart from the guideline range in imposing sentence.
We find that the record in this case contains no nonspeculative
basis on which we could conclude that the district court would have
sentenced Orellana to a lesser sentence had the court proceeded
under an advisory guideline scheme. Id. at 223. We therefore
conclude that Orellana has failed to demonstrate that the plain
error in sentencing him under a mandatory guidelines scheme
affected his substantial rights.
Accordingly, we affirm Orellana’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
- 3 -