UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                               No. 04-4380



UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee,

          versus


TONY B. GERMAN, a/k/a Antonio,

                                                 Defendant - Appellant.


Appeal from the United States District Court for the District of
South Carolina, at Florence.   Terry L. Wooten, District Judge.
(CR-02-802)


Submitted:   August 22, 2005                 Decided:   November 2, 2005


Before NIEMEYER, WILLIAMS, and GREGORY, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Allen B. Burnside, Assistant Federal Public Defender, Columbia,
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Unpublished opinions are not binding precedent in this circuit.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).
PER CURIAM:

            Tony B. German pled guilty to one count of conspiracy to

distribute and possess crack cocaine and cocaine in violation of 21

U.S.C. §§ 841(a)(1), 846 (2000).        German’s offense level was

modified upward to 43 because he shot and killed a woman during the

course of a drug deal gone bad.      See U.S. Sentencing Guidelines

Manual §§ 2D1.1(d)(1), 2A1.1 (2002).    At sentencing, German argued

the cross-reference for murder was improperly applied because the

conduct was more likely second degree murder which called for a

lower offense level.    The court disagreed with German’s argument

and sentenced him to the statutory maximum, which was also the

guideline sentence, of twenty years’ imprisonment.        On appeal,

German argues the court erred using the sentencing guidelines’

cross-reference for murder.    He also argues the sentence violated

the rules announced in United States v. Booker, 

(2005), and Blakely v. Washington, 

(2004). Finding no

reversible error, we affirm.

            Under USSG § 2D1.1(d)(1), “[i]f a victim was killed under

circumstances that would constitute murder under 18 U.S.C. § 1111

had such killing taken place within the territorial or maritime

jurisdiction of the United States, apply § 2A1.1 (First Degree

Murder).”     Section 1111 includes murder in the first and second

degree.     German argues that because his killing was closer to

second degree murder, USSG § 2A1.2 should apply.      The Government


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argues the plain language of § 2D1.1(d)(1) compels the court to

apply the cross reference to § 2A1.1 regardless of whether the

murder was first or second degree.

           We    consider   the   plain    language     of   the sentencing

guidelines when deciding how they are to be applied.             See United

States v. Warnick, 

, 304 (4th Cir. 2002) (analyzing the

plain language of the guidelines for downward reductions); United

States v. Houchins, 

, 190 (4th Cir. 2004) (analyzing

the plain language of the guidelines for sentencing enhancements).

Because the plain language of § 2D1.1 compels the district court to

impose the offense level under § 2A1.1, we find the court did not

err in setting German’s base offense level at 43.

           German did not object at sentencing to the district

court’s fact finding or the use of the guidelines as mandatory.

Accordingly, our review is for plain error.           See Fed. R. Crim. P.

52(b); United States v. Olano, 

, 731-32 (1993).              To

establish plain error, German must show an error occurred, the

error was plain, and the error affected his substantial rights.

See 

.       Even if German makes this three-part

showing, correction of the error remains within our discretion,

which   should   not   be   exercised   “unless   the    error   ‘seriously

affect[s] the fairness, integrity or public reputation of judicial

proceedings.’” 

v. Young, 

, 15

(1985)) (internal quotation marks omitted) (alteration added).


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               We find German admitted to the conduct that resulted in

the increase in the offense level based upon the cross-reference

for murder.       For instance, counsel stated at sentencing that “we

agree with the facts as set forth in the presentence report,”

specifically referring to the facts that supported the murder

enhancement.          (J.A. at 121).     Thus, the district court was not

called upon to engage in fact finding with respect to whether or

not German engaged in the conduct that resulted in the increased

offense level.

               As a result, German’s only argument is whether the

district court plainly erred because of the mandatory application

of the sentencing guidelines.           In United States v. White, 

(4th Cir. 2005), we held the mandatory application of the

guidelines is plain error.          However, we also held prejudice from

the error cannot be presumed.            

German

must    show    the    district   court’s    mandatory   application   of   the

sentencing guidelines was actually prejudicial and affected the

outcome of the proceedings.         

find German failed to

establish actual prejudice.            As a result, we affirm the sentence

and leave German’s unchallenged conviction undisturbed.

               We grant German’s motion to file a supplemental brief.

We     dispense    with    oral   argument     because   the   facts and legal




                                       - 4 -
contentions are adequately presented in the materials before the

court and argument would not aid the decisional process.



                                                           AFFIRMED




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