UNPUBLISHED

UNITED STATES COURT OF APPEALS 

FOR THE FOURTH CIRCUIT 

No. 06-5172

UNITED STATES OF AMERICA, 

 Plaintiff – Appellee, 

 v. 

WILLIAM HARRIS TAFT, JR., 

 Defendant – Appellant. 

Appeal from the United States District Court for the Western 

District of North Carolina, at Charlotte. Graham C. Mullen, 

Senior District Judge. (3:03-cr-00208) 

Argued: September 25, 2008 Decided: November 17, 2008 

Before WILKINSON, MICHAEL, and SHEDD, Circuit Judges. 

Affirmed by unpublished per curiam opinion. 

ARGUED: Alton Larue Gwaltney, III, MOORE & VAN ALLEN, Charlotte, 

North Carolina, for Appellant. Amy Elizabeth Ray, OFFICE OF THE 

UNITED STATES ATTORNEY, Asheville, North Carolina, for Appellee. 

ON BRIEF: Gretchen C. F. Shappert, United States Attorney, 

Charlotte, North Carolina, for Appellee. 

Unpublished opinions are not binding precedent in this circuit.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

 William Harris Taft, Jr. pled guilty to one count of 

conspiracy to defraud the United States, in violation of 18 

U.S.C. § 371. He now appeals his 41-month sentence imposed upon 

remand for resentencing pursuant to United States v. Booker, 543 

U.S. 220 (2005). For the following reasons, we affirm. 

 Taft’s primary argument is that the district court applied 

the Sentencing Guidelines in a mandatory fashion by giving a 

presumption of reasonableness to the Guidelines range in 

violation of Booker.1 In Rita v. United States, 127 S. Ct 2456, 

2465 (2007), which had not yet been decided at the time of 

sentencing, the Supreme Court limited application of the 

reasonableness presumption to appellate review and explicitly 

stated that “the sentencing court does not enjoy the benefit of 

a legal presumption that the Guidelines sentence should apply.” 

Taft filed written objections prior to sentencing, which he 

later referenced at the hearing. In his written objections, 

Taft objected to our post-Booker sentencing scheme. However, 

Taft did not explicitly object to any application of a district 

court presumption of reasonableness to the Guidelines range. 

 1

 Taft also contends that his sentence violates the Sixth 

Amendment because it is based on facts not found by a jury and 

is unreasonable. We have reviewed the record and find no merit 

to these contentions.

2 
Subsequently, when the district court noted a presumption of 

reasonableness twice during the hearing, Taft failed to 

explicitly object on these grounds either time. Because Taft 

did not properly object to the presumption, we review his 

sentence for plain error. See United States v. Olano, 507 U.S. 

725 (1993).2

 To establish plain error, Taft must show that an error 

occurred, that the error was plain, and that the error affected 

his substantial rights. Id. at 732-34. Even if Taft makes this 

three-part showing, correction of the error remains within our 

discretion, which we should not exercise unless the error 

“‘seriously affect[s] the fairness, integrity or public 

reputation of [the] judicial proceedings.’” Id. at 736 (internal 

citations omitted). 

 Our review of the record leads us to conclude there was 

error. See Rita, 127 S. Ct at 2465. The error is also plain. 

See Johnson v. United States, 520 U.S. 461, 468 (1997) (holding 

that “in a case. . .where the law at the time of trial was 

settled and clearly contrary to the law at the time of appeal — 

 2

 Plain error is appropriate in reviewing post-Booker

sentencing appeals. See United States v. White, 405 F.3d 208, 

217 (4th Cir. 2005). Moreover, at least one other circuit court 

has applied plain error analysis to an argument similar to the 

one Taft presents (i.e., the district court’s application of a 

reasonableness presumption to a Guideline sentence). See United 

States v. Howe, 538 F.3d 842, 857 (8th Cir. 2008). 

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it is enough that an error be ‘plain’ at the time of appellate 

consideration”). 

 We must now determine whether Taft has shown that the plain 

error in sentencing affected his substantial rights. Olano, 507 

U.S. at 734. In this regard, Taft must demonstrate prejudice —

i.e., the error affected the outcome of the district court 

proceedings. Id. In other words, Taft must show that had the 

error not occurred, he would have received a less severe 

sentence. We find that Taft has failed to make this showing. 

 At sentencing, the district court noted that it had 

considered the § 3553(a) factors. Although the district court 

noted a presumption of reasonableness in regard to the 

Guidelines, it also explicitly and correctly noted that the 

Guidelines were advisory. Further, the district court did not 

blindly accept the sentence calculations contained in the PSR. 

In fact, the district court, in giving individualized 

consideration to Taft, decreased his criminal history category 

from II to I. Although the court could have been more precise 

in its sentencing comments, it is clear that the court knew the 

Guidelines were advisory and that the court gave consideration 

to the § 3553(a) factors. It is also clear that the court 

fashioned an individualized sentence for Taft. Therefore, Taft 

has not persuaded us that his sentence would have been less had 

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the district court not erroneously stated there was a 

presumption of reasonableness to a Guidelines sentence. 

 Based on the foregoing, we affirm the district court’s 

judgment. 

AFFIRMED