United States v. Burman ( 2005 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 03-4555
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ALLAH BURMAN,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. Benson Everett Legg, Chief District Judge.
(CR-01-115-L)
Submitted: September 21, 2005 Decided: October 17, 2005
Before WILLIAMS, GREGORY, and DUNCAN, Circuit Judges.
Affirmed in part, vacated in part, and remanded by unpublished per
curiam opinion.
Francis A. Pommett, III, LAW OFFICE OF NATHANSON & POMMETT, P.C.,
Baltimore, Maryland, for Appellant. Allen F. Loucks, United States
Attorney, Christopher J. Romano, Assistant United States Attorney,
Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Allah Burman appeals his jury convictions and resulting
sentence for possessing cocaine with intent to distribute it in
violation of 18 U.S.C.A. § 841(a)(1) and conspiring to distribute
cocaine in violation of 18 U.S.C.A. § 846. We affirm Burman’s
convictions, but vacate his sentence and remand for resentencing.
We deny Burman’s pro se motions to relieve counsel and to proceed
pro se and his motions to stay this appeal.
Burman raises a litany of challenges to his conviction,
only one of which merits discussion. Burman first urges us to hold
that the district court violated his equal protection rights when
it failed to provide him with a free transcript of his co-
defendants’ trial. See Britt v. North Carolina, 404 U.S. 226, 227
(1961)(holding that the Government “must provide an indigent
defendant with a transcript of prior proceedings when that
transcript is needed for an effective defense or appeal”). The
record shows, however, that the district court denied Burman’s
request for the transcript not because Burman was indigent, but
rather to avoid delaying Burman’s trial for several months while
the transcript was prepared. (J.A. at 118 (“Had the transcript
already been prepared and available, I certainly would have
provided a copy to Mr. Burman, so this is really an issue as to
whether there should be a postponement . . . .”)). Thus, the
transcript would have been unavailable to a defendant with the
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means to pay for it himself, and Burman’s equal protection rights
are not implicated. See id. at 227 (“[Courts] must . . . provide
indigent prisoners with the basic tools of an adequate defense or
appeal, when those tools are available for a price to other
prisoners”) (emphasis added). We have considered the remainder of
Burman’s challenges to his conviction and find them meritless.
Finally, Burman claims that the district court violated
his Sixth Amendment rights when determining his sentence. A
district court violates the Sixth Amendment when, acting pursuant
to the mandatory Sentencing Reform Act and the Guidelines, it
imposes a sentence greater than the maximum authorized by the facts
found by the jury or admitted by the defendant in a guilty plea.
United States v. Booker, 125 S. Ct. 738 (2005). Because Burman was
sentenced in excess of the maximum authorized by the jury’s
verdict, his sentence is plainly erroneous, and a remand for
resentencing is warranted. United States v. Hughes, 401 F.3d 540,
547-56 (4th Cir. 2005).*
Accordingly, we affirm Burman’s conviction, vacate his
sentence, and remand for resentencing in accordance with Booker and
Hughes. We dispense with oral argument because the facts and legal
*
Just as we noted in Hughes, 401 F.3d at 545 n.4,“[w]e of
course offer no criticism of the district judge, who followed the
law and procedure in effect at the time” of Burman’s sentencing.
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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contentions of the parties 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
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