UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 03-4177

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

TIMOTHY EARL MILLS,

Defendant - Appellant.

On Remand from the Supreme Court of the United States.

(S. Ct. No. 04-1620)

Submitted: April 21, 2006 Decided: May 26, 2006

Before WIDENER, GREGORY, and SHEDD, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Walter L. Jones, JONES AND FREE, Greensboro, North Carolina, for

Appellant. Anna Mills Wagoner, United States Attorney, Sandra J.

Hairston, Assistant United States Attorney, Greensboro, North

Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

See Local Rule 36(c).
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PER CURIAM:

Timothy Earl Mills pled guilty to conspiracy to

distribute more than one kilogram of heroin and more than fifty

grams of crack cocaine, 21 U.S.C.A. §§ 846, 841(b)(1)(A) (West 2000

& Supp. 2003), and received a sentence of 150 months imprisonment.

He sought to appeal his sentence on the ground that the district

court erred in refusing to depart below the sentencing guidelines

range pursuant to U.S. Sentencing Guidelines Manual § 5H1.4, p.s.

(2002). We dismissed his appeal for lack of jurisdiction. United

States v. Mills, No. 03-4177, 120 F. App’x 436 (4th Cir. 2005).

The Supreme Court subsequently granted Mills’ petition for

certiorari, vacated this court’s judgment, and remanded his case

for further proceedings in light of United States v. Booker, 543

U.S. 220 (2005).

Mills was sentenced before the decisions in Booker and

its predecessor, Blakely v. Washington, 542 U.S. 296 (2004), and he

did not raise objections to his sentence based on the mandatory

nature of the guidelines or the district court’s application of

sentencing enhancements based on judicial fact finding rather than

facts he admitted. Therefore, we review his sentence for plain

error. United States v. Hughes, 401 F.3d 540, 547 (4th Cir. 2005).

Mills now contends that his sentence was illegal in light of Booker

because the district court applied the sentencing guidelines as

mandatory. He maintains that, had the district court not been
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subject to “the strictures of the Guidelines,” it might have been

willing to depart downward pursuant to § 5H1.4. 

While the mandatory application of the guidelines

constitutes plain error, United States v. White, 405 F.3d 208, 217

(4th Cir.), cert. denied, 126 U.S. 668 (2005), a defendant who

seeks resentencing on this ground must show actual prejudice, i.e.,

a “nonspeculative basis for concluding that the treatment of the

guidelines as mandatory ‘affect[ed] the district court’s selection

of the sentence imposed.’” Id. at 223 (quoting Williams v. United

States, 503 U.S. 193, 203 (1992)). The record does not indicate

that the district court wished to impose a sentence lower than the

150-month sentence Mills was given. Therefore, he cannot show that

he was prejudiced by the district court’s erroneous application of

the guidelines as mandatory.

We therefore affirm the 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