United States v. Hearne , 163 F. App'x 195 ( 2005 )


Menu:
  •                             UNPUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    No. 03-4979
    UNITED STATES OF AMERICA,
    Plaintiff - Appellee,
    versus
    TONY ANTHONY HEARNE,
    Defendant - Appellant.
    On Remand from the United States Supreme Court.
    (S. Ct. No. 04-7741)
    Submitted:   October 26, 2005             Decided:   December 7, 2005
    Before WIDENER and SHEDD, Circuit Judges, and HAMILTON, Senior
    Circuit Judge.
    Vacated and remanded by unpublished per curiam opinion.
    Louis C. Allen, III, Federal Public Defender, Eric D. Placke,
    Assistant Federal Public Defender, Greensboro, North Carolina, for
    Appellant. Anna Mills Wagoner, United States Attorney, Angela H.
    Miller, 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    Unpublished opinions are not binding precedent in this circuit.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:
    Tony Anthony Hearne pled guilty to possession of a
    firearm by a convicted felon, 
    18 U.S.C. § 922
    (g)(1) (2000) (Count
    One), and possession of counterfeit reserve notes, 
    18 U.S.C.A. § 472
     (West Supp. 2005) (Count Three). The district court departed
    upward from the applicable guideline range and imposed a sentence
    of 205 months imprisonment for Count Three and a concurrent 120-
    month sentence (the statutory maximum) for Count One.             We affirmed
    the sentence and subsequently denied rehearing.             United States v.
    Hearne, No. 03-4979 (4th Cir. June 29, 2004) (unpublished).                The
    Supreme Court later granted Hearne’s petition for certiorari,
    vacated this court’s judgment in light of United States v. Booker,
    
    125 S. Ct. 738
       (2005),     and   remanded   the   case   for   further
    proceedings.       Hearne has since filed pro se motions requesting a
    remand for resentencing, appointment of new counsel, and leave to
    file a pro se supplemental brief.
    Hearne’s sentence was imposed before the decisions in
    Booker and its predecessor, Blakely v. Washington, 
    542 U.S. 296
    (2004), and 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).
    - 2 -
    Over Hearne’s objection, the district court applied an
    enhanced base offense level of 26, U.S. Sentencing Guidelines
    Manual § 2K2.1(a)(1) (2003), based on the court’s determination
    that he possessed two firearms in addition to the Ruger revolver
    charged in the indictment.      The court also applied a two-level
    enhancement for possession of three firearms.        Based only on the
    facts Hearne admitted, and before adjustment for acceptance of
    responsibility, USSG § 3E1.1, see United States v. Evans, 
    416 F.3d 298
    , 300 n.4 (4th Cir. 2005), his offense level would have been 28.
    Because he was in criminal history category VI, his guideline range
    would have been 140-175 months.   The 205-month sentence imposed by
    the district court therefore exceeded the maximum authorized based
    on the facts Hearne admitted. The sentence thus meets the standard
    for plain error that must be recognized set out in Hughes.*
    Accordingly,   we   vacate    the   sentence   imposed   by   the
    district court and remand for resentencing.       We grant Hearne’s pro
    se motions for remand and to file a pro se supplemental brief, but
    deny his motion for new counsel.          We note that we previously
    concluded that the district court did not clearly err in finding
    that Hearne possessed a MAC-10 or similar semiautomatic weapon, and
    *
    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 Hearne’s 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”).
    - 3 -
    our conclusion is not affected by Booker.               However, our prior
    decision that the court’s one-level upward departure was warranted
    should   not    restrict   the    district    court    in   determining     the
    appropriate sentence on remand.
    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 the departure 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 materials before the
    court and argument would not aid the decisional process.
    VACATED AND REMANDED
    - 4 -
    

Document Info

Docket Number: 03-4979

Citation Numbers: 163 F. App'x 195

Judges: Widener, Shedd, Hamilton

Filed Date: 12/7/2005

Precedential Status: Non-Precedential

Modified Date: 11/5/2024