United States v. Ellis , 159 F. App'x 489 ( 2005 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 03-4435
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
RENE ELLIS, a/k/a Money, a/k/a Nut,
Defendant - Appellant.
On Remand from the United States Supreme Court.
(S. Ct. Nos. 04-5765; 04-6471)
Submitted: September 28, 2005 Decided: December 16, 2005
Before MOTZ, TRAXLER, and KING, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
James P. Craig, CRAIG LAW FIRM, P.C., Columbia, South Carolina, for
Appellant. Jonathan S. Gasser, Acting United States Attorney,
Marshall Prince, Assistant United States Attorney, Jimmy C. Ewing,
Esq., OFFICE OF THE U.S. ATTORNEY, Columbia, South Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Rene Ellis was convicted by a jury of aiding and abetting
three bank robberies (Counts One, Five, and Eight), conspiracy to
carry firearms during and in relation to bank robberies in
violation of 18 U.S.C. § 924(o) (2000) (Count Four), and three
substantive counts of aiding and abetting violations of 18 U.S.C.
§§ 924(c), 2 (2000) (Counts Two, Six, and Nine). We affirmed his
sentence of 852 months imprisonment, and subsequently denied
rehearing. United States v. Ellis, No. 03-4435 (4th Cir. Mar. 17,
2004) (unpublished).
Ellis filed a petition for writ of certiorari in the
United States Supreme Court. His petition was granted, and this
court’s judgment was vacated in light of the decision in United
States v. Booker, 125 S. Ct. 738 (2005). Ellis v. United States,
125 S. Ct. 1047 (2005). Ellis’ case has been remanded to this
court for further proceedings.
Because Ellis’ sentence was imposed prior to the
decisions in Booker and its predecessor, Blakely v. Washington, 542
U.S. 296 (2004), he did not raise objections to his sentence based
on the mandatory nature of the sentencing guidelines or the
district court’s application of sentencing enhancements based on
facts not admitted by him or found by the jury beyond a reasonable
doubt. Therefore, we review his sentence for plain error. United
States v. Hughes, 401 F.3d 540, 546-60 (4th Cir. 2005).
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We first note that, in his supplemental brief, Ellis
again asserts that the district court erred in imposing consecutive
sentences for the § 924(c) convictions in Counts Two, Six, and
Nine. He raised the issue before this court previously, and we
rejected it, concluding that “the district court did not err in
imposing the statutorily required consecutive sentences.” United
States v. Ellis, 2004 WL 515542 at *2. Ellis does not claim that
the § 924(c) sentences were error under Booker. Therefore, further
review of the issue is foreclosed by the mandate rule. See United
States v. Bell, 5 F.3d 64, 66 (4th Cir. 1993). The mandate rule
“compels compliance on remand with the dictates of a superior court
and forecloses relitigation of issues expressly or impliedly
decided by the appellate court.” Id.Ellis received a four-level role adjustment that the
district court determined should apply on Counts One, Four, and
Eight, over Ellis’ objection, and a one-level loss adjustment on
Count Five which he did not contest. Without the role adjustment,
Ellis’ total offense level for Counts One, Five, and Eight would
have been 22. The total offense level for Count Four would have
been 24. A four-level multiple-count adjustment would have applied
under U.S. Sentencing Guidelines Manual § 3D1.4 (2002), making the
combined adjusted offense level 28. Because Ellis was in criminal
history category IV, the guideline range would have been 110-137
months. The 168-month sentence imposed by the district court
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therefore exceeded the maximum permitted based on the facts found
by the jury, and violated the Sixth Amendment. The sentence thus
meets the standard for plain error that must be recognized under
the reasoning set out in Hughes.*
Accordingly, we vacate the sentence and remand for
resentencing consistent with Booker. Although the sentencing
guidelines are no longer 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. 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. Id. If that sentence falls outside the
guidelines range, the court should explain its reasons for imposing
a non-guidelines sentence as required by 18 U.S.C.A. § 3553(c)(2).
Id. The sentence must be “within the statutorily prescribed range
and . . . reasonable.” Id. We dispense with oral argument because
the facts and legal contentions are adequately presented in the
*
Just as we noted in Hughes, “[w]e of course offer no
criticism of the district court judge, who followed the law and
procedure in effect at the time” of Ellis’ sentencing. Hughes, 401
F.3d at 545 n.4. See generally Johnson v. United States, 520 U.S.
461, 468 (1997) (stating that an error is “plain” if “the law at
the time of trial was settled and clearly contrary to the law at
the time of appeal”).
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materials before the court and argument would not aid the
decisional process.
VACATED AND REMANDED
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