UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 05-4055

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

JAMES ALLEN HAWKINS, JR.,

Defendant - Appellant.

Appeal from the United States District Court for the District of

South Carolina, at Florence. Terry L. Wooten, District Judge.

(CR-04-649-TLW)

Submitted: August 24, 2005 Decided: October 11, 2005

Before MICHAEL and GREGORY, Circuit Judges, and HAMILTON, Senior

Circuit Judge.

Affirmed by unpublished per curiam opinion.

Michael A. Meetze, Assistant Federal Public Defender, Florence,

South Carolina, for Appellant. Rose Mary Parham, Assistant United

States Attorney, Florence, South Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

See Local Rule 36(c).
*

Anders v. California, 386 U.S. 738, 744 (1967).

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PER CURIAM:

James Allen Hawkins, Jr. appeals his conviction and

fifty-four month sentence imposed after he pled guilty to being in

knowing possession of a firearm after having been convicted of a

crime punishable by more than one year in prison, in violation of

18 U.S.C. § 922(g)(1) (2000). On appeal, Hawkins’ counsel filed an

Anders* brief, stating that there were no meritorious issues, but

raising the following issues: (1) whether the district court

complied with Fed. R. Crim. P. 11 in accepting Hawkins’ guilty

plea; and (2) whether Hawkins’ federal guidelines sentence was

plainly erroneous in light of the Supreme Court’s decision in

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

advised of his right to file a pro se supplemental brief, but did

not respond. The Government adopted counsel’s Anders brief and

elected not to file a separate brief. We affirm.

Under Fed. R. Crim. P. 11(b)(1), the district court must

address the defendant in open court and inform him of the

following: the nature of the charge; any mandatory minimum

sentence and the maximum possible sentence; the applicability of

the sentencing guidelines; the defendant's right to an attorney;

his right to be tried by a jury with the assistance of counsel; his

right to confront and cross-examine witnesses; and his right

against self-incrimination. He also must be told that a guilty
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plea waives any further trial and that his answers at the

proceeding may be used against him in a prosecution for perjury.

The court must determine that the defendant understands the terms

of any waiver of appeal provision in the plea agreement. Under

Rule 11(b)(2), the court must address the defendant to determine

that the plea is voluntary. The court must require disclosure of

any plea agreement under Rule 11(c)(2), and determine a factual

basis for the plea under Rule 11(b)(3). Based on our review of the

record, we find that the district court complied with Rule 11 and

that the court ensured that Hawkins’ plea was knowing and

voluntary.

To the extent Hawkins claims the district court erred by

sentencing him under then-mandatory guidelines, because he did not

object below to the application of the sentencing guidelines,

appellate review is 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 an 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). Hawkins failed to meet this

burden because he presented no non-speculative evidence or argument

demonstrating that he would have received a lower sentence had the

district court appreciated that the guidelines were not mandatory.

Moreover, the district court in this case stated on the record that

if the guidelines were deemed unconstitutional or merely nonbinding, Hawkins’ sentence would be the same. Accordingly, the

district court’s error of sentencing Hawkins under a mandatory

guidelines scheme did not affect Hawkins’ substantial rights.

As required by Anders, we have reviewed the entire record

and have found no meritorious issues for appeal. We therefore

affirm Hawkins’ sentence. This court requires that counsel inform

his client, in writing, of his right to petition the Supreme Court

of the United States for further review. If the client requests

that a petition be filed, but counsel believes that such a petition

would be frivolous, then counsel may move in this court for leave
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to withdraw from representation. Counsel’s motion must state that

a copy thereof was served on the client. 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