UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 04-4698

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

ROMI RAHEMM WHITE,

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-04-93)

Submitted: August 31, 2006 Decided: December 11, 2006

Before WILKINSON, MICHAEL, and DUNCAN, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Thomas N. Cochran, Assistant Federal Public Defender, Greensboro,

North Carolina, for Appellant. Anna Mills Wagoner, United States

Attorney, Harry L. Hobgood, Assistant United States Attorney,

Greensboro, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Romi Rahemm White appeals his sentence imposed after he

pled guilty to possession of $9,740 in counterfeit currency, in

violation of 18 U.S.C. § 472 (2000). He challenges his sentence

alleging that the district court violated the Sixth Amendment in

calculating his criminal history points and in sentencing him under

the mandatory sentencing guidelines scheme. We affirm.

In United States v. Booker, 543 U.S. 220 (2005), the

Supreme Court held 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. Id. at 233-34. “To

establish that a Sixth Amendment error occurred in his sentencing,

[a defendant] must show that the district court imposed a sentence

exceeding the maximum allowed based only on the facts that he

admitted.” United States v. Evans, 416 F.3d 298, 300 (4th Cir.

2005).

White argues that the district court violated the Sixth

Amendment in calculating his criminal history points. White does

not contest any of the facts of the prior convictions used to

calculate his score. Because he alleges factual determinations are

essential to the calculation of his criminal history category, he

claims his guideline range should be calculated using the lowest

criminal history category of I.
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White’s challenge to his criminal history calculation

under Booker is unavailing. In Shepard v. United States, 544 U.S.

13 (2005), the Supreme Court instructed that Sixth Amendment

protections apply to disputed facts about a prior conviction that

are not evident from “the conclusive significance of a prior

judicial record.” Id. at 26-28. Here, White does not contest any

facts about his prior convictions used to arrive at his criminal

history score. Indeed, the district court was not called upon to

consider any facts regarding the convictions. Thus, the court’s

determination as to the criminal history category did not violate

the Sixth Amendment. See United States v. Collins, 412 F.3d 515,

521-23 (4th Cir. 2005) (finding no Sixth Amendment violation when

nature and separateness of predicate offenses for career offender

status were undisputed); cf. United States v. Washington, 404 F.3d

834, 843 (4th Cir. 2005) (finding that district court’s reliance on

disputed facts about prior conviction to determine that it was

crime of violence violated Sixth Amendment). Because White’s

guideline calculation was based on facts admitted by him and not on

judicial fact-finding, his sentence did not violate the Sixth

Amendment.

White also makes a summary challenge to his sentence

based on the court’s mandatory application of the sentencing

guidelines. Although there is no Sixth Amendment error in this

case, White was sentenced under a mandatory sentencing guidelines
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scheme. In Booker, the Supreme Court concluded that, even in the

absence of a Sixth Amendment violation, the imposition of a

sentence under the mandatory guidelines scheme was error. Booker,

543 U.S. at 267-68. This court explained that sentencing under a

mandatory scheme is “a separate class of error . . . distinct from

the Sixth Amendment claim that gave rise to the decision in Booker,

and it is non-constitutional in nature.” United States v. Hughes,

401 F.3d 540, 553 (4th Cir. 2005). The court recognized that

“[t]his error may be asserted even by defendants whose sentences do

not violate the Sixth Amendment.” Id. (footnote omitted). 

Because White raised a timely Blakely v. Washington, 542

U.S. 296 (2004), objection at sentencing, he has preserved his

claim of statutory Booker error. United States v. Rodriguez, 433

F.3d 411, 415-16 (4th Cir. 2006). Thus, this court reviews White’s

claim for harmless error, which places “the burden . . . on the

Government to show that such an error did not affect the

defendant’s substantial rights.” Id. at 416. “The Government can

make such a showing if the sentencing court indicated that it would

not have imposed a lesser sentence under an advisory (rather than

a mandatory) Guidelines regime.” United States v. Sullivan,

455 F.3d 248, 266 (4th Cir. 2006) (citing Rodriguez, 433 F.3d at

416) (King, J., concurring). 

Here, there is no indication that the district court

would have imposed a lower sentence had the sentencing guidelines
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been advisory. We conclude, based on the court’s statements at

sentencing, that imposition of White’s sentence under the mandatory

guidelines scheme was harmless error. See Sullivan, 455 F.3d at

266.

We therefore affirm White’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