The opinion
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4271
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
RAYMONT DAVID BROWN,
Defendant - Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Bluefield. David A. Faber, Chief
District Judge. (CR-03-155)
Submitted: June 27, 2005 Decided: July 19, 2005
Before WILKINSON, GREGORY, and DUNCAN, Circuit Judges.
Affirmed in part, vacated in part, and remanded by unpublished per
curiam opinion.
Derrick W. Lefler, GIBSON, LEFLER & ASSOCIATES, Princeton, West
Virginia, for Appellant. Kasey Warner, United States Attorney,
John L. File, Assistant United States Attorney, Beckley, West
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Pursuant to a plea agreement, Raymont David Brown pled
guilty to distribution of a quantity of cocaine base (“crack”), in
violation of 21 U.S.C. § 841(a)(1) (2000). The district court
sentenced Brown under the Federal Sentencing Guidelines to 137
months in prison. Brown timely appealed. We affirm Brown’s
conviction, vacate his sentence, and remand for resentencing.
Brown contends that his sentence is unconstitutional in
light of Blakely v. Washington, 124 S. Ct. 2531 (2004). Because he
did not raise this issue in the district court, his claim is
reviewed for plain error. Fed. R. Crim. P. 52(b); United States v.
Hughes, 401 F.3d 540, 547 (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. at 547-48.
If the defendant establishes these requirements, the court may
exercise its discretion to notice the error “only when failure to
do so would result in a miscarriage of justice, such as when the
defendant is actually innocent or the error seriously affects the
fairness, integrity or public reputation of judicial proceedings.”
Id. at 555 (internal quotation marks and citation omitted).
In United States v. Booker, 125 S. Ct. 738 (2005), the
Supreme Court held that the mandatory manner in which the Federal
Sentencing Guidelines required courts to impose sentencing
enhancements based on facts found by the court by a preponderance
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of the evidence violated the Sixth Amendment. Id. at 746, 750
(Stevens, J., opinion of the Court). The Court remedied the
constitutional violation by making the Guidelines advisory through
the removal of two statutory provisions that had rendered them
mandatory. Id. at 746 (Stevens, J., opinion of the Court); id. at
756-57 (Breyer, J., opinion of the Court).
Here, the district court found that Brown was responsible
for a quantity of drugs equivalent to 303.31 kilograms of
marijuana; however Brown admitted responsibility only for a
quantity of crack equivalent to 12.6 kilograms of marijuana. The
district court also increased Brown’s offense level by two levels
under U.S. Sentencing Guidelines Manual § 2D1.1(b)(3) (2003) based
on facts to which Brown did not admit at his plea hearing. The
district court erred because the enhancements occurred under the
mandatory guidelines scheme. Hughes, 401 F.3d at 547. The error
was plain because Booker abrogated the previous law of this
circuit.
To affect Brown’s substantial rights, the sentence
imposed must have been longer than what could have been imposed
based on Brown’s admissions alone. Id. at 548. Brown admitted to
distributing a quantity of crack equivalent to 12.6 kilograms of
marijuana, which, including the three-level offense level reduction
awarded by the district court for acceptance of responsibility
under USSG § 3E1.1(a), (b), yields an offense level of thirteen and
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not the offense level of twenty-five upon which he was sentenced.
Because Brown’s criminal history category was VI, the district
court’s factual finding increased Brown’s sentencing range from
thirty-three to forty-one months imprisonment to 110 to 137 months
imprisonment. Brown’s 137-month sentence thus exceeds the sentence
that could have been imposed based only on the facts admitted by
Brown. We therefore conclude that the district court committed
plain error that warrants correction.1
Independent of Blakely, Brown also contends that the
district court erred by increasing his offense level by two levels
under USSG § 2D1.1(b)(3). We find that, in the absence of the
Booker error, enhancement under USSG § 2D1.1(b)(3) would not be
improper.
For the reasons stated, we affirm Brown’s conviction,
vacate his sentence, and remand for resentencing consistent with
Booker and Hughes.2 We dispense with oral argument because the
1
Just as we noted in Hughes, “[w]e of course offer no
criticism of the district judge, who followed the law and procedure
in effect at the time” of Brown’s sentencing. 401 F.3d at 545 n.4.
2
Although the Guidelines no longer are mandatory, Booker makes
clear that a sentencing court must still “consult [the] Guidelines
and take them into account when sentencing.” 125 S. Ct. at 767
(Breyer, J., opinion of the Court). On remand, the district court
should first determine the appropriate sentencing range under the
Guidelines, making all factual findings appropriate for that
determination. Hughes, 401 F.3d at 546. The court should consider
this sentencing range along with the other factors described in 18
U.S.C.A. § 3553(a) (West 2000 & Supp. 2005), and then impose a
sentence. Hughes, 401 F.3d at 546. If that sentence falls outside
the Guidelines range, the court should explain its reason for the
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facts and legal contentions are adequately presented in the
materials before the court and argument would not aid the
decisional process.
AFFIRMED IN PART,
VACATED IN PART, AND REMANDED
departure as required by 18 U.S.C.A. § 3553(c)(2) (West 2000 &
Supp. 2005). Hughes, 401 F.3d at 546. The sentence must be
“within the statutorily prescribed range and . . . reasonable.”
Id. at 547.
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