United States v. Cross , 159 F. App'x 484 ( 2005 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-5030
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
WILLIAM TERRENCE CROSS, a/k/a Red,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Rebecca Beach Smith, District
Judge. (CR-03-10)
Submitted: September 30, 2005 Decided: December 16, 2005
Before WILKINSON, TRAXLER, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Joseph R. Winston, LAW OFFICES JOSEPH RYLAND WINSTON, Richmond,
Virginia, for Appellant. Paul J. McNulty, United States Attorney,
Michael J. Elston, Laura P. Tayman, Assistant United States
Attorneys, Alexandria, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
William Terrence Cross was convicted by a jury of
tampering with a witness, in violation of 18 U.S.C. § 1512(b)(1)
(2000), and retaliating against a witness, in violation of
§ 1513(b)(2) (2000). Although the district court initially
sentenced him to 100 months of imprisonment, this court vacated and
remanded for resentencing. United States v. Cross, 371 F.3d 176(4th Cir. 2004). In Cross, decided prior to the Supreme Court’s
ruling in Blakely v. Washington, 542 U.S. 296 (2004), we held that,
in applying United States Sentencing Guidelines Manual (“USSG”)
§ 2X3.1 (2002), the Accessory After the Fact guideline, “the base
offense level for a drug-related ‘underlying offense’ should
include any increase based on the quantity of drugs involved,
without regard to whether the defendant knew, or reasonably should
have known, the amount involved.” Cross, 371 F.3d at 182. On
remand, the district court, applying USSG § 2X3.1 as mandated by
this court, resentenced Cross to a term of 168 months of
imprisonment. The district court further stated that it would
impose the same sentence based on the factors set forth in 18
U.S.C.A. § 3553(a) (West 2000 & Supp. 2005), even if the guidelines
were merely advisory.
On appeal, Cross argues, pursuant to United States v.
Booker, 125 S. Ct. 738 (2005), and Blakely, that he was sentenced
in violation of his Sixth Amendment rights, and that the district
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court erred in treating the guidelines as mandatory. Because Cross
preserved the Sixth Amendment issue by objecting to his sentence
under Blakely below, review is de novo. United States v. Mackins,
315 F.3d 399, 405 (4th Cir. 2003). In Booker, 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 of the evidence
violated the Sixth Amendment. 125 S. Ct. at 756. The Court
remedied the constitutional violation by severing two statutory
provisions, 18 U.S.C.A. § 3553(b)(1) (West Supp. 2005) (requiring
sentencing courts to impose a sentence within the applicable
guideline range), and 18 U.S.C.A. § 3742(e) (West 2000 & Supp.
2005) (setting forth appellate standards of review for guideline
issues), thereby making the guidelines advisory. Id. at 756-67.
In Cross, we determined that the application of USSG
§ 2X3.1 was proper and that application of the guideline required
using the base offense for the drug-related underlying offense
regardless of whether Cross knew, or reasonably should have known,
the amount involved. 371 F.3d at 182. Because at resentencing the
district court merely applied the guideline as mandated and made no
factual determinations regarding drug quantity in doing so, we find
no Sixth Amendment error.
Cross also claims that he is entitled to a new sentencing
under an advisory guidelines scheme. We disagree. Under either a
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plain error or harmless error standard of review, in light of the
identical alternative sentence set forth by the district court, we
conclude that no reversible error occurred. See United States v.
White, 405 F.3d 208, 223 (4th Cir. 2005) (noting that substantial
rights inquiry under plain or harmless error is the same and that
only difference is who bears burden of proof).
Accordingly, we affirm Cross’ sentence. We further find
the arguments Cross presents in his pro se brief and supplements
without merit. 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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