UNITED STATES of America, Plaintiff-Appellee, v. Jose Oscar MEJIA-MEJIVAR, Defendant-Appellant, 158 F. App'x 504

PER CURIAM: Jose Oscar Mejia-Mejivar pled guilty to illegal reentry of a removed alien after conviction for an aggravated felony, in violation of 8 U.S.C. § 1326(a), (b)(2) (2000). He appeals his sentence. Mejia-Mejivar argues on appeal that the district court erred by treating the Sentencing Guidelines as mandatory in violation of United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), and United States v. Hughes, 401 F.3d 540 (4th Cir.2005), and by announcing an alternate sentence without addressing the factors of 18 U.S.C. § 3553(a) (West 2000 & Supp.2005).

Even assuming, without deciding, that the harmless error standard applies, Mejia-Mejivar cannot establish that any error by the district court in the application of the guidelines as mandatory affected his substantial rights because it had no effect on the district court’s selection of Mejia-Mejivar’s sentence. The district court noted in sentencing Mejia-Mejivar: “I have considered carefully the circumstances of this defendant ... and if the [Sentencing Guidelines did not exist, I would impose the same sentence ...

I do not believe that the sentence that is developed by application of the Sentencing Guidelines is, in any way, materially different than that which I would impose, independent of the Sentencing Guidelines.” Accordingly, we deny Mejia-Mejivar’s motion to remand and affirm his conviction and 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