United States of America v.  Michael Jason Bartram

Filed: May 9, 2005
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 99-4566
(CR-99-12)
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
MICHAEL JASON BARTRAM,
Defendant - Appellant.
O R D E R
The court amends its opinion filed April 29, 2005, as
follows:
On the opinion’s cover page, under Counsel, line 3, change
“Assistant United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY” to “Special Attorney to the Attorney General.”
On Page 6, the last paragraph, in the first sentence, the
word “forgoing” should be corrected to read “foregoing.”
For the Court
/s/ Patricia S. Connor
____________________________
Clerk

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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 99-4566 
MICHAEL JASON BARTRAM,
Defendant-Appellant. 
Appeal from the United States District Court
for the Southern District of West Virginia, at Charleston.
Charles H. Haden II, District Judge.
(CR-99-12)
Argued: December 2, 2004
Decided: April 29, 2005
Before WIDENER, NIEMEYER, and GREGORY, Circuit Judges.
Affirmed by published opinion. Judge Widener wrote the opinion.
Judge Niemeyer wrote a separate opinion concurring in part and con-
curring in the judgment. Judge Gregory wrote a separate opinion con-
curring in the judgment.
COUNSEL
ARGUED: Robert Allen Ratliff, SHIELDS, RATLIFF, GREEN &
KERN, Mobile, Alabama, for Appellant. Michael James Elston,
Special Attorney to the Attorney General, Alexandria,
Virginia, for Appellee. ON BRIEF: Paul J. McNulty, United
States Attorney, Brian D. Miller, Special Attorney to the Attorney

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General, Kimberly R. Pedersen, Special Attorney to the Attorney
General, Alexandria, Virginia, for Appellee.
OPINION
WIDENER, Circuit Judge:
I.
The defendant, Michael Jason Bartram, pleaded guilty to a one-
count information charging distribution of cocaine base in violation
of 21 U.S.C. § 841(a)(1). On appeal Bartram raises several issues
challenging the judgment of the district court and the constitutionality
of his sentence in the Southern District of West Virginia. For the rea-
sons that follow, we affirm.
II.
On February 17, 1999, the defendant and twelve others were
charged in a thirteen count superseding indictment with various drug
related offenses by a federal grand jury. The grand jury charged the
defendant in Count Two of the thirteen-count superseding indictment,
which was conspiracy to possess with intent to distribute cocaine,
cocaine base and marijuana in violation of 21 U.S.C. § 846. On April
23, 1999, the United States filed an information charging Bartram
with distributing "a quantity of cocaine base" in violation of 21
U.S.C. § 841(a)(1). Bartram entered into a plea agreement with the
United States and, pursuant to that agreement, pleaded guilty to the
charge in the information. The plea agreement correctly specified that
20 years of imprisonment was the maximum statutory sentence for the
offense charged in the information, and the district court advised Bar-
tram of the maximum penalty during the plea colloquy. The minimum
statutory sentence was 10 years. 21 U.S.C. § 841(b)(1)(A)(iii). The
district court held a sentencing hearing for the defendant on July 26,
1999. Although the defendant’s pre-sentence report did not recom-
mend it, the district court concluded that Bartram’s base offense level
was 31, having awarded him a three-level reduction from level 34 for
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acceptance of responsibility, and his criminal history placed him in
criminal history category II. Thus, the applicable guideline range was
121-151 months of imprisonment; a fine of $15,000 to $1,000,000;
and three years of supervised release. The district court imposed a
sentence of 132 months of imprisonment, a $2,000 fine, and a three-
year term of supervised release. The district court also dismissed the
count as to this defendant for a violation of 21 U.S.C. § 846 in the
superseding indictment.
Although the defendant had initially objected to the conclusion in
the pre-sentence investigation report that the defendant’s relevant
conduct included the distribution of over 150 grams of cocaine base,
the defendant withdrew that objection at the beginning of the sentenc-
ing hearing. Also, Bartram’s attorney admitted in open court that
defendant distributed more than 150 grams of cocaine base. Given
that admission and the defendant’s withdrawal of the objection to
criminal conduct, the United States did not offer any evidence with
respect to drug quantity. The district court found that the defendant
had accepted responsibility, reducing his offense level from 34 to 31.
The defendant filed a timely notice of appeal on August 5, 1999.
This court consolidated the defendant’s appeal with the appeals of
three of his co-defendants. On August 28, 2002, while the consoli-
dated appeals were yet pending, this court remanded the case to the
district court in view of the government’s disclosure of a relationship
between its lead investigator and one of the defendant’s co-
defendants, and directed the district court to conduct such further pro-
ceedings as it may have deemed appropriate. On remand, the defen-
dants moved to disqualify the United States Attorney’s Office for the
Southern District of West Virginia from further involvement in the
prosecution of this case. The district court concluded that the lead
prosecutor in the case would likely be a witness in any post-remand
proceedings and that other prosecutors and employees in the office
were also potential witnesses. United States v. Dyess, 231 F. Supp.2d
493, 497 (S.D.W. Va. 2002). Although the district court noted that
there were no allegations of improprieties or misconduct by the
United States Attorney’s Office in general or the lead prosecutor in
particular, the district court disqualified the United States Attorney’s
Office to avoid the appearance of impropriety. Dyess, 231 F. Supp.2d
at 497, n.4.
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After new attorneys were appointed to appear on behalf of the
United States, Bartram moved for a new trial, or, in the alternative,
to withdraw his guilty plea. The district court denied the defendant’s
motion on December 18, 2003. On May 19, 2004, the United States
moved to reconsider the consolidation of this appeal with the appeals
of Bartram’s co-defendants, and, on June 28, 2004, this court granted
the motion.
III.
Bartram argues several issues on appeal. First, he argues that the
district court erred in sentencing him on the basis of 150 grams of
cocaine base and in imposing a two thousand dollar fine. Further,
Bartram claims 21 U.S.C. §§ 841 and 846 are unconstitutional in light
of the Supreme Court’s decisions in Apprendi v. New Jersey, 530 U.S.
466 (2000) and Blakely v. Washington, 72 U.S.L.W. 4546 (2004). He
argues that these cases render constitutionally infirm all guideline
upward adjustments and departures predicated on facts that were not
charged in the indictment and found by a jury beyond a reasonable
doubt. Finally, Bartram claims the only constitutional remedy is to
apply only those guideline provisions consistent with the rule in
Blakely, in light of the recent Supreme Court decision in United States
v. Booker, and resentence the defendant according to the amount of
drugs for which he was initially charged, 1.8 grams of cocaine base.
The information on which Bartram was tried charged only "a quantity
of cocaine base." J.A. 145. No Fifth Amendment objection is made
on that account.
We have been instructed in Booker, which governs this case, to
"apply the review standards set forth in this opinion." Booker, Justice
Breyer at 25. A remaining feature of the sentencing system is that
"[t]he courts of appeals review sentencing decisions for unreasonable-
ness." Booker, Justice Breyer at 22. "[I]n cases not involving a Sixth
Amendment violation," such as this one, "whether resentencing is
warranted or whether it will instead be sufficient to review a sentence
for reasonableness may depend upon application of the harmless-error
doctrine." Booker, Justice Breyer at 26. Following Booker, Justice
Breyer at 26, we are of opinion that "resentencing is [not] warranted"
and conclude it is sufficient "to review [the] sentence for unreason-
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ableness." We conclude the sentencing decision of the district court
in this case to be reasonable, as we set forth below.
A.
Bartram first argues that the district court erred in sentencing him
on the basis of 150 grams of cocaine base. Bartram argues that the
information contained in the pre-sentence report did not support a
finding of 150 grams of cocaine base. As the defendant admits in his
brief, however, during the sentencing hearing, he withdrew his objec-
tion to drug quantity.1 Further, the defendant’s attorney admitted in
open court that the defendant distributed "over 150 grams" of cocaine
base.2 The statement concluded: ". . . overall it still equals over 150
grams." (JA 179) Based on the defendant’s plea of guilty, the district
court sentenced him accordingly.
To arrive at the sentence of 11 years for distribution of over 150
grams of cocaine base, the district court consulted the Sentencing
Guidelines. In so doing, the only error the district court committed
was applying the guidelines under our pre-Booker mandatory case
law under the Sentencing Guidelines, 18 U.S.C. § 3553(b)(1), as
opposed to treating them as advisory, as required by Booker, Justice
Breyer at 16-17. The district court carefully applied each section of
the guidelines based on the defendant’s admissions and the informa-
tion in the presentence report to which fact-finding exception is not
taken, other than as to the 150 grams of cocaine base.
1Mr. Hively [defendant’s attorney]: Your Honor, at this time Mr. Bar-
tram is prepared to withdraw his objection to the relevant conduct and
accepts the relevant conduct as stated in the presentence report. (JA 179)
2Bartram argues in the alternative ineffective assistance of counsel for
withdrawing his objection to drug quantity during the sentencing hearing.
We have previously held that "‘a claim of ineffective assistance should
be raised in a 28 U.S.C. § 2255 motion in the district court rather than
on appeal, unless the record conclusively shows ineffective assistance.’"
United States v. King, 119 F.3d 290, 295 (4th Cir. 1997) quoting United
States v. Williams, 977 F.2d 866, 871 (4th Cir. 1992). Because the record
does not conclusively show that Bartram’s trial counsel was ineffective
in withdrawing the defendant’s objection to drug quantity, we reject this
claim.
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The presentence report stated that the defendant pleaded guilty to
a single-count information charging the defendant with knowingly
and intentionally distributing a quantity of cocaine base under 21
U.S.C. § 841(a)(1). This offense is a Class C felony with a maximum
punishment of 20 years, $1,000,000 fine, 3 years supervised release,
and $100 criminal assessment. Bartram initially admitted to having
sold 1.8 grams of cocaine base, but the relevant conduct to which he
admitted during sentencing determined the amount to be at least 150
grams.3
Based on the 1998 edition of the Guidelines Manual, for offenses
involving at least 150 grams of cocaine base, but less than 500 grams
of cocaine base, the base offense level is 34. U.S.S.G. § 2D1.1(a)(3)
and 2D1.1(c). Against the recommendation of the probation officer,
the district court granted Bartram "a three point reduction in total
offense level from 34 to 31" for acceptance of responsibility, which
the government does not appeal. The district court also found that
Bartram had two criminal history points, which put him in criminal
history category II under U.S.S.G. § 5A, "expos[ing] him to a sen-
tencing guideline range of 121 to 151 months." Thus, the maximum
statutory sentence Bartram could receive was 20 years and the mini-
mum was 10 years.
After the foregoing careful consideration, the district court sen-
tenced him to 11 years. The district court examined and applied the
Sentencing Guidelines just as Booker instructs. "The district courts,
while not bound to apply the Guidelines, must consult those Guide-
lines and take them into account when sentencing." Booker, Justice
Breyer at 21-22. Based on the district court’s careful deliberation in
sentencing Bartram and because the district court sentenced him
within the statutory guidelines, indeed near the low end, we are of
opinion the sentence of 11 years is reasonable. And we so hold.
3This figure is based on Bartram’s wife’s initial report to the police
where she indicated that she had seen the defendant with $30,000 to
$40,000 in drug proceeds. The government’s position was that, assuming
the value of one gram of cocaine base is $200, the case would convert
to at least 150 grams of cocaine base to equal the lower amount of
$30,000 in drug sales.
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B.
Next, Bartram argues that the district court erred in imposing a two
thousand dollar fine, even thought it was well below the sentencing
guidelines minimum of $15,000. He claims that the district court did
not make a sufficient finding that Bartram had the ability to pay a fine
in any event.
The maximum statutory fine is $1,000,000, pursuant to 21 U.S.C.
§ 841(b)(1)(C). A special assessment of $100 is mandatory, pursuant
to 18 U.S.C. § 3013. According to the presentence report, under the
guideline provisions, the fine range for a level 34 offense is a mini-
mum of $17,500, pursuant to U.S.S.G. § 5E1.2(c)(3), and a maximum
of $1,000,000, pursuant to U.S.S.G. § 5E1.2(c)(4). The fine range
determined by the district court for the fine was $15,000 to
$1,000,000. The district court imposed the fine below the guideline
range because of inability to pay. At sentencing the district court
stated, "I impose a fine below the guideline at 2 thousand dollars,
believing the defendant can satisfy the fine during the time he’s incar-
cerated from the inmate financial responsibility program." (JA 182)
Based on the district court’s careful examination of the guidelines and
the defendant’s ability to pay, we are of opinion and decide the fine
of two thousand dollars to be reasonable.4 Bartram does not point out
any error in the district court’s finding that he might satisfy the fine
while in prison. So that finding of the district court is reasonable.
In arriving at our conclusion, both as to the fine and the sentence
of imprisonment, we have considered the pre-sentence report, the
transcript of the sentencing hearing, and the entire record in this case.
With Booker, Justice Breyer at 25, we do not "believe that every
appeal will lead to a new sentencing hearing." And this is such a case.
C.
The purpose of the Sentencing Guidelines is to provide uniformity
in sentencing in all parts of the country but to preserve flexibility
4Bartram also agreed in the plea agreement not to seek appellate
review of any fine imposed. Because we find the imposed fine to have
been reasonable, we need not consider the issue of waiver.
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when required in unusual cases. One feature of the system was that
in certain instances the courts of appeals were to review the judg-
ments of the district courts for unreasonableness. This review for
unreasonableness is one of the "features of the remaining system,
while not the system Congress enacted, [that] nonetheless continue to
move sentencing in Congress’ preferred direction." Booker, Justice
Breyer at 22.
Reasonableness appears three times in the statute establishing
review of a sentence under the Sentencing Guidelines, 18 U.S.C.
§ 3742. The first instance, § 3742(e), has been excised by Booker, so
it has no application to this case. Booker, Justice Breyer at 16. The
second and third mentions are in § 3742(f)(2), which was not excised.
The first (f)(2) application is when the sentence is "outside the appli-
cable guideline range" and the "departure" is "to an unreasonable
degree." The second (f)(2) application is when "there is no applicable
sentencing guideline" for the offense and the sentence imposed "is
plainly unreasonable." Neither of the § 3742(f) instances have any
application here, for the sentence is within the guidelines range and
there is an applicable sentencing guideline.
If we tie our review of whether or not the sentence of the district
court is reasonable to the wording of the statute, as just demonstrated,
it is severely limited and would have only rare application in a case
disposed of based upon a plea of guilty, which is the disposition
accorded in the ordinary criminal case. In this circuit, more than 94%
of the criminal convictions are as a result of guilty pleas, and more
than 76% of all criminal cases are disposed of on guilty pleas. When
the Court, in the Booker case, vacated the obligatory requirement
from the standards for guidelines sentencing and substituted therefor
the requirement that the sentencing guidelines were yet permissive, it
enacted a huge change in criminal procedure, and I think it did not
intend to restrict its requirement of reasonableness to the statutory
requirements of the guidelines in the two instances mentioned above.
Rather, I think the Court imposed the reasonable requirement to go
with the permissive requirement imposed at the same time. I think the
Court required the courts of appeals to review the actions taken by the
district courts in sentencing to be reviewed under the standards of the
system outlined in Booker and, if its acts were reasonable, to affirm
the sentence of the district court. I would define reasonable under
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ordinary English usage as: being in agreement with right thinking or
right judgment. Webster’s Dictionary, 3rd, p.1892.
In this connection, the Judge Niemeyer’s concurring opinion is
based on its construction of the White case, which is that the defen-
dant had not carried "the burden of showing that the error [of using
obligatory Guidelines] affected his substantial rights." Slip p.14.
Whatever the burden may have been in White, in this case, the defen-
dant’s statutory mandatory minimum sentence was 10 years, and his
statutory maximum sentence was 20 years. The defendant was sen-
tenced to 11 years, one year more than the minimum. So the defen-
dant received an additional year in prison and his substantial rights
were thus affected by reason of the additional year. The sentence the
defendant might have received under the sentencing system outlined
in Booker is not the issue at this stage of the analysis. The issue is
whether the addition of one year to Bartram’s sentence is a substantial
right. I think that it is.
That being true, I think we may judge whether or not the action of
the district court in adding the year to Bartram’s sentence was reason-
able. In my opinion, it was. The district court considered the guide-
lines and sentenced within the guidelines range. See Booker, Justice
Breyer, p.21-22. The sentence imposed was near the low end of the
statutory range and was at the lower end of the Guidelines range.
Nothing in the record shows that the district court considered any
improper factor in sentencing or that any action of the district court
was unreasonable.
D.
The defendant next contends that 21 U.S.C. § 841 is unconstitu-
tional in light of Apprendi v. New Jersey, 530 U.S. 466 (2000). We
concluded in United States v. McAllister, 272 F.3d 228, 230 (4th Cir.
2001) that
Section 841 simply defines a crime and assigns penalty
ranges depending upon particular characteristics of the
crime. Nothing in the statute purports to prescribe a process
by which the elements of the crime and other relevant facts
must be determined. Accordingly, nothing in § 841 conflicts
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with the Apprendi rule, which governs that process only.
We therefore reject McAllister’s argument and join the
Fifth, Sixth, Seventh, and Tenth Circuits in holding that
§ 841 is not facially unconstitutional.
272 F.3d at 232 (internal citations omitted). Therefore, we conclude
that the defendant’s contention is without merit.
E.
Finally, Bartram claims that Blakely v. Washington, 72 U.S.L.W.
4546 (2004), renders constitutionally infirm all guideline upward
adjustments and departures predicated on facts that were not charged
in the indictment and found by a jury beyond a reasonable doubt. We
find no merit in his argument.5
The defendant in this case waived his Sixth Amendment rights
when he consented to the plea agreement. "When a defendant pleads
guilty he or she, of course, forgoes not only a fair trial, but also other
accompanying constitutional guarantees." United States v. Ruiz, 536
U.S. 622, 628 (2002). As the Court has noted:
Several federal constitutional rights are involved in a waiver
that takes place when a plea of guilty is entered in a state
criminal trial. First, is the privilege against compulsory self-
incrimination guaranteed by the Fifth Amendment and
applicable to the States by reason of the Fourteenth. Second,
is the right to trial by jury. Third, is the right to confront
one’s accusers.
Boykin v. Alabama, 395 U.S. 238, 243 (1969) (internal citations omit-
ted). Further, "the Constitution insists . . . that the defendant enter a
guilty plea that is ‘voluntary’ and that the defendant must make
related waivers ‘knowingly, intelligently, [and] with sufficient aware-
ness of the relevant circumstances and likely consequences." Ruiz,
5The defendant has not pointed out in this appeal or otherwise that the
computation or application of the district court was unreasonable. As
stated above, it is the reasonableness of the district court’s sentencing
decision which we review under Booker.
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536 U.S. at 629 (quoting Brady v. United States, 397 U.S. 742, 748
(1970)).
A plea of guilty submits the defendant to fact finding by the judge,
rather than the jury. The Judiciary Act of 1789, Section 11, and later
amendments, bestows on the circuit and district courts6 "exclusive
cognizance of all crimes and offences cognizable under the authority
of the United States." See also Judiciary Act of 1789, Sections 9, 17,
and 33 and Kent’s Commentaries, 3rd ed., 1836, p. 301-06 for expla-
nation. For over 200 years, the trial courts have had jurisdiction to fix
sentences, except in peculiar circumstances such as the present death
penalty statute. Certainly this includes the authority for the judge to
find facts unless otherwise prohibited. Booker has not changed that.
Here, the district court thoroughly questioned Bartram regarding
the rights he waived. Bartram answered in the affirmative each ques-
tion, demonstrating that his understanding of the plea agreement was
knowing and voluntary. The district court did not err in its fact find-
ing because the facts were based on the defendant’s own admissions.
Therefore, we are of opinion and hold the defendant’s argument under
Blakely to be without merit.
IV.
Because there was no Sixth Amendment violation in this case, all
facts being admitted under the guilty plea or expressly in open court,
the real effect of Booker on this case is whether the district court’s
addition of one year to the statutory minimum of 10 years to Bar-
tram’s sentence was reasonable. Booker, Justice Breyer at 26. We
conclude that it was. We also conclude the imposed fine to be reason-
able. Thus, we find no reversible error in the judgment of district
court.
Accordingly, the judgment of the district court is
AFFIRMED.
6Those circuit courts were also trial courts.
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NIEMEYER, Circuit Judge, concurring in part and concurring in the
judgment:
I am pleased to concur in most of what Judge Widener has written,
and I concur in the judgment. My only reservation relates to the stan-
dard that we must apply in reviewing Bartram’s sentence.
As Judge Widener points out, Bartram pleaded guilty, and during
his sentencing hearing, he admitted to participation in a conspiracy
that trafficked in at least 150 grams of crack cocaine. Bartram’s coun-
sel stated at the hearing that Bartram disputed the full extent of the
drug amounts attributed to him by witnesses — "there might have
been less of — fewer times or more frequent times with lesser
amounts of drugs than the amount that Mr. Dixon stated" — but Bar-
tram acknowledged that "overall it still equals over 150 grams."
Based on this amount, Bartram was sentenced to 132 months’ impris-
onment. Because Bartram admitted the drug amount, he did not and
could not claim a Sixth Amendment violation in not having had a jury
determine that fact. Nor did he object to being sentenced under a
mandatory Guidelines scheme.
On appeal, Bartram nonetheless challenges his sentence under
United States v. Booker, 125 S. Ct. 738 (2005), contending that the
district court erred by treating the Sentencing Guidelines as a manda-
tory system for sentencing purposes. Both Judge Widener and I agree
that this was error, albeit not a Sixth Amendment error. We depart,
however, on the analysis that follows the finding of error. Judge Wid-
ener suggests that by reason of Booker we review the sentence
imposed for "reasonableness." Supra at 4. In contrast, I respectfully
suggest, likewise by reason of Booker, that we apply the plain-error
doctrine, under which Bartram carries the burden of proof of estab-
lishing that the sentencing error affected his substantial rights.
Because Bartram did not carry this burden, I would conclude that
under Federal Rule of Criminal Procedure 52(b), we cannot correct
the error. See United States v. Cotton, 535 U.S. 625, 631 (2002).
In Booker, the Supreme Court held that the mandatory nature of the
Sentencing Guidelines implicated the Sixth Amendment by imposing
sentence enhancements based on the sentencing judge’s determination
of facts not admitted by the defendant nor proved to a jury beyond a
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reasonable doubt. See 125 S. Ct. at 746, 756. The Court resolved the
problem by invalidating two provisions of the Sentencing Reform Act
of 1984 that made the Sentencing Guidelines mandatory, thus permit-
ting the remainder of the Sentencing Guidelines to operate "in a man-
ner consistent with congressional intent." Id.; see also id. at 756-57.
As the Court explained,
[i]f the guidelines as currently written could be read as
merely advisory provisions that recommended, rather than
required, the selection of particular sentences in response to
differing sets of facts, their use would not implicate the
Sixth Amendment. We have never doubted the authority of
a judge to exercise broad discretion in imposing a sentence
within a statutory range.
Id. at 750. Even with this holding, however, a sentencing court
remains under an obligation to consider the Guidelines’ ranges, id. at
757, but now it is permitted "to tailor the sentence in light of other
statutory concerns" identified in 18 U.S.C. § 3553(a). Id.; see also id.
at 767 ("The district courts, while not bound to apply the Guidelines,
must consult those Guidelines and take them into account when sen-
tencing").
With respect to appellate review, the Booker Court invalidated 18
U.S.C. § 3742(e) because that section established a standard of review
that was linked to the mandatory nature of the Sentencing Guidelines.
125 S. Ct. at 765. To fill the gap created by the invalidation of
§ 3742(e), the Court adopted an appellate review standard of "reason-
ableness," finding that this standard was implied in the statutory
framework that it left standing. Id. at 766. The Court concluded that
the adoption of the reasonableness standard for reviewing sentences
imposed under the non-mandatory scheme most closely adhered to
congressional intent. Id. at 767. The Court noted that the reasonable-
ness standard thus should govern review of any resentencings
imposed by reason of the Booker holding. Id. at 769. But the court
also observed that its holding would not require resentencing in all
cases: "[W]e expect reviewing courts to apply ordinary prudential
doctrines, determining, for example, whether the issue was raised
below and whether it fails the ‘plain-error’ test." Id.
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Because there was no Sixth Amendment violation in this case, our
holding in United States v. Hughes, 401 F.3d 540 (4th Cir. 2005),
does not require resentencing. Rather, our holding in United States v.
White, ___ F.3d ___, No. 04-4349, 2005 WL 949326 (4th Cir. Apr.
26, 2005), is the relevant precedent. In White, the defendant’s sen-
tence was based entirely on facts found by the jury and therefore no
Sixth Amendment violation occurred. See slip op. at 10. Nonetheless,
we found, as we do here, that an error in sentencing occurred because
the defendant was sentenced under a mandatory system. See id.
("Thus, 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"). As such, we reviewed that error under the plain-error test and
imposed on the defendant the burden of showing that the error
affected his substantial rights. See id. at 20; Fed. R. Crim. P. 52(b);
United States v. Olano, 507 U.S. 725, 734-35 (1993); United States
v. Williams, 81 F.3d 1321, 1326 (4th Cir. 1996). Because the defen-
dant failed to carry his burden, we concluded in White that we could
not correct the error on appeal. See White at 21; see also Cotton, 535
U.S. at 631.
In this case, Bartram likewise did not carry his burden of demon-
strating that the sentence imposed under a mandatory sentencing
scheme affected his substantial rights. Moreover, Judge Widener’s
review of the sentence under a standard of reasonableness clearly
demonstrates why Bartram could not sustain such a burden. Applying
the plain-error test authorized in Booker for this circumstance, I thus
reach the same result reached by Judge Widener, albeit under a differ-
ent analysis. Accordingly, I concur in our affirmance.
GREGORY, Circuit Judge, concurring in the judgment:
I concur in the judgment only.
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