UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 04-4867

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

MELESIO MARTINEZ-HERNANDEZ,

Defendant - Appellant.

Appeal from the United States District Court for the Middle

District of North Carolina, at Durham. Frank W. Bullock, Jr.,

District Judge. (CR-03-280)

Submitted: June 22, 2005 Decided: July 18, 2005

Before LUTTIG and MOTZ, Circuit Judges, and HAMILTON, Senior

Circuit Judge.

Affirmed by unpublished per curiam opinion.

Warren Sparrow, Winston-Salem, 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Unpublished opinions are not binding precedent in this circuit.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).
1

U.S. Sentencing Guidelines Manual (“USSG”) (2003).

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PER CURIAM:

Melesio Martinez-Hernandez appeals his conviction and

sixty-six month sentence imposed after he pleaded guilty to one

count of reentry by a deported alien after conviction of an

aggravated felony in violation of 8 U.S.C. § 1326(a), (b)(2)

(2000). On appeal, Martinez-Hernandez asserts that he was

improperly sentenced under a mandatory guidelines1

 scheme in

violation of the Supreme Court’s decision in United States v.

Booker, 125 S. Ct. 738 (2005). Because we find no plain error in

the determination or imposition of Martinez-Hernandez’s sentence,

we affirm.

In Booker, the Supreme Court applied the rationale of

Blakely v. Washington, 124 S. Ct. 2531 (2004), to the federal

sentencing guidelines and held that the mandatory guidelines scheme

that provided for sentence enhancements based on facts found by the

court violated the Sixth Amendment. Booker, 125 S. Ct. at 746-48,

755-56 (Stevens, J., opinion of the Court). The Court remedied the

constitutional violation by severing and excising the statutory

provisions that mandate sentencing and appellate review under the

guidelines, thus making the guidelines advisory. Id. at 756-57

(Breyer, J., opinion of the Court). Subsequently, in United

States v. Hughes, 401 F.3d 540, 546 (4th Cir. 2005), this court

held that a sentence imposed under the pre-Booker mandatory
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sentencing scheme and enhanced based on facts found by the court,

not by a jury (or, in a guilty plea case, admitted by the

defendant), constitutes plain error. This error affects the

defendant’s substantial rights and warrants reversal under Booker

when the record does not disclose what discretionary sentence the

district court would have imposed under an advisory guideline

scheme. Hughes, 401 F.3d at 546-56. We directed sentencing courts

to calculate the appropriate guideline range, consider that range

in conjunction with other relevant factors under the guidelines and

18 U.S.C.A. § 3553(a) (West 2000 & Supp. 2005), and impose a

sentence. If a sentence outside the guideline range is imposed,

the district court should state its reasons for doing so. Id. at

546.

Because Martinez-Hernandez withdrew his objections to the

sentence calculations included in the presentence report and

adopted by the district court, we review the district court’s

sentence for plain error. United States v. Olano, 507 U.S. 725,

732 (1993); Hughes, 401 F.3d at 547. Under the plain error

standard, Martinez-Hernandez must show: (1) there was error; (2)

the error was plain; and (3) the error affected his substantial

rights. Olano, 507 U.S. at 732-34. Even when these conditions are

satisfied, we may exercise our discretion to notice the error only

if the error “seriously affect[s] the fairness, integrity or public
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reputation of judicial proceedings.” Id. at 736 (internal

quotation marks omitted).

In determining whether error occurred in

Martinez-Hernandez’s sentencing, we note that Hughes also

recognized “that after Booker, there are two potential errors in a

sentence imposed pursuant to the pre-Booker mandatory guidelines

regime: a Sixth Amendment error, . . . and an error in failing to

treat the guidelines as advisory.” Hughes, 401 F.3d at 552. On

appeal, Martinez-Hernandez does not raise any specific argument

that his sentence was affected by a Sixth Amendment error, but

asserts error in the application of the guidelines as a mandatory

sentencing determinant. In United States v. White, 405 F.3d 208

(4th Cir. 2005), this court determined that “even in the absence of

a Sixth Amendment violation, the imposition of a sentence under the

former mandatory guidelines regime rather than under the advisory

regime outlined in Booker is error” that is plain. Id. at 216-17.

We also concluded that, to satisfy the third prong of the plain

error test, an appellant must demonstrate actual prejudice. Id. at

217-24. White could not satisfy this requirement, however, because

he could not establish that the application of the guidelines as

mandatory had an effect on “‘the district court’s selection of the

sentence imposed.’” Id. at 223 (quoting Williams v. United States,

503 U.S. 193, 203 (1992)).
2We of course offer no criticism of the district court judge,

who followed the law and procedure in effect at the time of

Martinez-Hernandez’s sentencing.

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Our review of the district court’s remarks at the

sentencing hearing leads us to conclude that the district court’s

statements do not support Martinez-Hernandez’s argument, but would

rather require speculation by this court to determine whether the

district court would have imposed a lesser sentence by treating the

guidelines as advisory. White, 405 F.3d at 223-25. Accordingly,

Martinez-Hernandez cannot demonstrate that the district court’s

error2

 in sentencing him pursuant to a mandatory guidelines scheme

affected his substantial rights.

We therefore affirm Martinez-Hernandez’s conviction and

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