The opinion
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4694
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ANTHONY JEROME BROWN,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. William L. Osteen, District
Judge. (CR-04-13)
Submitted: July 29, 2005 Decided: September 23, 2005
Before NIEMEYER, LUTTIG, and KING, Circuit Judges.
Affirmed in part, vacated in part, and remanded by unpublished per
curiam opinion.
Louis C. Allen, III, Federal Public Defender, John A. Dusenbury,
Jr., Assistant Federal Public Defender, Greensboro, North Carolina,
for Appellant. Anna Mills Wagoner, United States Attorney, Michael
A. DeFranco, Assistant United States Attorney, Greensboro, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Anthony Jerome Brown appeals the thirty-nine month
sentence imposed after he pled guilty to escaping from the custody
of the United States, in violation of 18 U.S.C. § 751(a) (2000).
He asserts that his sentence violates the Sixth Amendment.1 Brown
does not challenge his conviction. Accordingly, we affirm his
conviction, vacate his sentence, and remand for further
proceedings.
On September 26, 2003, while an inmate at the Troy House
Community Corrections Center in Durham, North Carolina, Brown
escaped. Brown remained at large until December 31, 2003, when he
was apprehended in Roxboro, North Carolina, following a high speed
chase, an altercation with the arresting officer, and an attempted
carjacking. After Brown entered his guilty plea to violating
§ 751(a), but before sentencing, the Supreme Court rendered its
decision in Blakely v. Washington, 542 U.S. 296 (2004).
At sentencing, the district court established a base
offense level of thirteen, pursuant to U.S. Sentencing Guidelines
Manual (“USSG”) § 2P1.1(a)(1) (2003). Brown received a five-level
increase for use of force against the arresting officer pursuant to
USSG § 2P1.1(b)(1), a two-level increase for reckless endangerment
1
Brown also challenges the facts supporting the enhancement
for use of force. We need not resolve that issue at this time.
See United States v. Hughes, 401 F.3d 540, 546 n.15 (4th Cir.
2005).
- 2 -
during flight pursuant to USSG § 3C1.2, and a three-level downward
adjustment for acceptance of responsibility pursuant to USSG
§ 3E1.1. Brown’s corresponding sentencing range for a total
offense level of seventeen and a criminal history category of IV
was thirty-seven to forty-six months of imprisonment. Over Brown’s
objection based upon Blakely, the district court sentenced Brown to
thirty-nine months in prison.
On appeal, Brown argues that both enhancements violate
his Sixth Amendment rights. Because Brown preserved this issue,
this court’s review is de novo. See United States v. Mackins, 315
F.3d 399, 405 (4th Cir. 2003) (“If a defendant has made a timely
and sufficient Apprendi[2] sentencing objection in the trial court,
and so preserved his objection, we review de novo.”). When a
defendant preserves a Sixth Amendment error, this court “must
reverse unless [it] find[s] this constitutional error harmless
beyond a reasonable doubt, with the Government bearing the burden
of proving harmlessness.” Id. (citations omitted); see United
States v. White, 405 F.3d 208, 223 (4th Cir. 2005) (discussing
difference in burden of proving that error affected substantial
rights under harmless error standard in Fed. R. App. P. 52(a), and
plain error standard in Fed. R. App. P. 52(b)).
Although Brown pleaded guilty to escaping, a close review
of the plea agreement and Fed. R. Crim. P. 11 colloquy reveals that
2
Apprendi v. New Jersey, 530 U.S. 466 (2000).
- 3 -
Brown did not admit to the facts that underpinned the sentencing
enhancements for use of force or reckless endangerment during
flight. Rather, the relevant facts were found by the district
court at sentencing by a preponderance of the evidence.
Accordingly, because the district court’s sentencing enhancements
were based upon facts not admitted to by Brown, we conclude that
they were applied in error.3 Brown’s recalculated guidelines range
without the two judicial enhancements would be twenty-four to
thirty months based upon an offense level of thirteen4 and a
criminal history category of IV. We therefore conclude that this
error is not harmless.
Accordingly, we affirm Brown’s conviction, vacate Brown’s
sentence, and remand to the district court for resentencing.5 We
3
Just as we noted in United States v. Hughes, 401 F.3d 540,
545 n.4 (4th Cir. 2005), "[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.
4
See United States v. Evans, 416 F.3d 298, 300 n.4 (4th Cir.
2005) (noting that, in determining whether Sixth Amendment error
occurred, sentence imposed must be compared to permissible
guideline range before adjusting for acceptance of responsibility).
5
Although the sentencing guidelines are no longer mandatory,
United States v. Booker, 125 S. Ct. 738, 767 (2005), makes clear
that a sentencing court must still “consult [the] Guidelines and
take them into account when sentencing.” On remand, the district
court should first determine the appropriate sentencing range under
the guidelines. 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. Id. & n.5. If that sentence falls outside
the guidelines range, the court should explain its reasons for the
departure, as required by 18 U.S.C.A. § 3553(c)(2) (West Supp.
- 4 -
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 IN PART,
VACATED IN PART,
AND REMANDED
2005). Id. The sentence must be within the statutorily prescribed
range and reasonable. Id. at 547.
- 5 -