United States v. Childer , 370 F. App'x 409 ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4186
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ROBERT LEE CHILDERS,
Defendant - Appellant.
Appeal from the United States District Court for the Northern
District of West Virginia, at Clarksburg. Irene M. Keeley,
District Judge. (1:07-cr-00017-IMK-1)
Submitted: February 18, 2010 Decided: March 15, 2010
Before MOTZ, GREGORY, and AGEE, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Brian J. Kornbrath, Federal Public Defender, Clarksburg, West
Virginia, for Appellant. Sharon L. Potter, United States
Attorney, Zelda E. Wesley, Assistant United States Attorney,
Clarksburg, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Robert Lee Childers pled guilty to distribution of
crack cocaine, in violation of 21 U.S.C. §§ 841(a)(1),
841(b)(1)(C) (2006), and was sentenced to 135 months’
imprisonment. On appeal, he raises an as-applied Sixth
Amendment challenge to his sentence, arguing that his sentence
would not be “reasonable” under 18 U.S.C. § 3553(a) (2006) if
not for the judicially-found facts that substantially increased
his guidelines range. Finding no constitutional error, we
affirm.
Although the count in the indictment to which Childers
pled guilty charged him with distribution of approximately .23
grams of crack cocaine, at sentencing, the district court found
Childers responsible under relevant conduct for a “high low of
184.94 to 260.77 [grams of cocaine base].” Childers’ ultimate
advisory guidelines range based in part on this finding was 121
to 151 months’ imprisonment. The district court concluded that
135 months was a reasonable sentence in Childers’ case.
On appeal, Childers raises an as-applied Sixth
Amendment challenge to his sentence, arguing that his sentence
would not be “reasonable” under 18 U.S.C. § 3553(a) in the
absence of the district court’s factual determination as to the
amount of drugs attributable to him. After United States v.
Booker, 543 U.S. 220 (2005), the sentencing court still may
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engage in fact-finding necessary to a correct calculation of the
applicable guidelines. See United States v. Battle, 499 F.3d
315, 322-23 (4th Cir. 2007). Nonetheless, Childers argues that,
in his case, a constitutional violation occurred because the
district court’s decision significantly increased his guideline
range.
Childers bases his argument on Justice Scalia’s
concurring opinion in Rita v. United States, 551 U.S. 338(2007), in which Justice Scalia stated, “there will inevitably
be some constitutional violations under a system of substantive
reasonableness [appellate] review, because there will be some
sentences that will be upheld as reasonable only because of the
existence of judge-found facts.” Id. at 374 (Scalia, J.,
concurring in part and concurring in the judgment) (emphasis in
original). Childers argues that, because a judge-found fact
(the amount of drugs attributed to him) was necessary to achieve
a correct calculation of the guidelines range and a lawful
sentence and that the fact determined by the court had the
effect of increasing his sentence significantly, his Sixth
Amendment right to a jury trial was violated.
A district court violates the Sixth Amendment when it
applies the guidelines as mandatory and imposes a sentence
greater than the maximum allowed by the jury’s verdict. See
United States v. Perry, 560 F.3d 246, 258 (4th Cir. 2009)
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(holding that, after Booker, district courts may “continue to
make factual findings concerning sentencing factors by a
preponderance of the evidence,” including relying on acquitted
conduct); United States v. Webb, 545 F.3d 673, 677 (8th Cir.
2008) (finding that, as long as the sentence imposed does not
exceed the statutory maximum authorized by the jury’s verdict,
the district court does not violate the Sixth Amendment by
imposing a sentence based on a higher drug quantity than was
determined by the jury).
In United States v. Benkahla, 530 F.3d 300, 312 (4th
Cir. 2008), we specifically rejected the Sixth Amendment as-
applied argument, finding it “too creative for the law as it
stands.” We reiterated that “[s]entencing judges may find facts
relevant to determining a Guidelines range by a preponderance of
the evidence, so long as that Guidelines sentence is treated as
advisory and falls within the statutory maximum authorized by
the jury’s verdict.” Id. As we noted, “[t]he point is thus
that the Guidelines must be advisory, not that judges may find
no facts.” Id.; see also United States v. Ashqar, 582 F.3d 819,
825 (7th Cir. 2009) (“While [the as-applied Sixth Amendment]
argument is not without its advocates, it is not the law.”)
(internal citations omitted); United States v. Setser, 568 F.3d
482, 498 (5th Cir. 2009) (rejecting as-applied Sixth Amendment
challenge to a higher sentence within the statutory maximum
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based on judicially-found facts); United States v. White, 551
F.3d 381, 384 (6th Cir. 2008) (en banc) (“In the post-Booker
world, the relevant statutory ceiling is no longer the
Guidelines range but the maximum penalty authorized by the
United States Code.”); United States v. Redcorn, 528 F.3d 727,
745-46 (10th Cir. 2008) (rejecting as-applied Sixth Amendment
challenge to judicially-found facts).
Here, Childers pled guilty to distribution of .28
grams of cocaine base. The maximum sentence allowed under the
statute based on his plea is twenty years’ imprisonment. See 21
U.S.C. § 841(b)(1)(C). The sentencing court determined by a
preponderance of the evidence that Childers was responsible for
between “184.94 to 260.77 [grams of cocaine base].” The 135-
month sentence imposed by the district court, based on this
finding and after treating the guidelines as advisory, was
within the maximum authorized sentence. Therefore, we find that
Childers’ sentence does not violate the Sixth Amendment.
Accordingly, we affirm Childers’ 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
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