UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 02-4713

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

LLOYD MENDEZ,

Defendant - Appellant.

On Remand from the United States Supreme Court.

(S. Ct. No. 04-7328)

Submitted: October 17, 2005 Decided: November 22, 2005

Before NIEMEYER, LUTTIG, and GREGORY, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Christopher J. Moran, LAW OFFICE OF CHRISTOPHER J. MORAN, Columbia,

South Carolina, for Appellant. Jonathan S. Gasser, Acting United

States Attorney, Lee E. Berlinsky, Assistant United States

Attorney, Charleston, South Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

See Local Rule 36(c).
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PER CURIAM:

This case is before the court on remand from the Supreme

Court. Lloyd Mendez pled guilty to possession with intent to

distribute and distribution of fifty grams or more of cocaine base.

He was sentenced to 240 months of imprisonment. We previously

affirmed Lloyd Mendez’s conviction and sentence. United States v.

Mendez, No. 02-4713, 2004 WL 1240564 (4th Cir. June 7, 2004)

(unpublished).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

Mendez’s case to us for further consideration in light of United

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

In his supplemental brief, Mendez argues that he is

entitled to resentencing pursuant to Booker because he was

sentenced under a mandatory scheme. Because Mendez did not object

below to the mandatory application of the guidelines, we review for

plain error. United States v. White, 405 F.3d 208, 215 (4th Cir.

2005). To demonstrate plain error, a defendant must establish that

error occurred, that it was plain, and that it affected his

substantial rights. Id. (citing United States v. Olano, 507 U.S.

725, 732 (1993)). If a defendant establishes these requirements,

the court has discretion to correct the error, but “should not

exercise . . . [that discretion] unless the error seriously

affect[s] the fairness, integrity or public reputation of judicial

proceedings.” Id. (internal quotation marks and citation omitted).
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In White, this court determined that imposing a sentence

under the guidelines as mandatory was error that was plain. White,

405 F.3d at 217. In determining whether this error affected the

defendant’s substantial rights, the court reasoned that “the error

of sentencing a defendant under a mandatory guidelines regime” was

not an error for which prejudice would be presumed. Id. at 221.

Rather, the defendant bears the burden of showing that this error

“affected the outcome of the district court proceedings.” Id. at

223 (quoting Olano, 507 U.S. at 734). 

We find that Mendez fails to meet this burden. In this

case, the Government filed an information pursuant to 21 U.S.C.

§ 851 (2000), subjecting Mendez to a mandatory minimum term of

imprisonment of twenty years. 21 U.S.C. § 841(b)(1)(A) (2000).

Mendez received the lowest possible sentence allowed by statute.

Because the district court could not have imposed a lower sentence

under an advisory sentencing system, Mendez cannot make the

necessary showing. Id. at 224-25. We therefore conclude that the

district court’s error of sentencing Mendez under a mandatory

guidelines scheme did not affect his substantial rights. 

Accordingly, we affirm Mendez’s sentence and reinstate

our previous opinion affirming his conviction. We dispense with

oral argument because the facts and legal contentions are
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adequately presented in the materials before the court and argument

would not aid the decisional process.

AFFIRMED