United States v. Lanham ( 2005 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4762
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
KENNETH MICHAEL LANHAM,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. William D. Quarles, Jr., District Judge.
(CR-03-215)
Submitted: July 20, 2005 Decided: August 23, 2005
Before NIEMEYER, GREGORY, and SHEDD, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
James Wyda, Federal Public Defender, Lauren Elizabeth Case, Paresh
S. Patel, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Greenbelt,
Maryland, for Appellant. Thomas Michael DiBiagio, United States
Attorney, Kwame Jangha Manley, OFFICE OF THE UNITED STATES
ATTORNEY, Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Kenneth Michael Lanham pled guilty pursuant to a plea
agreement to one count of bank robbery in violation of 18 U.S.C.
§ 2113(a) and (f).1 He was sentenced on September 7, 2004, to 151
months in prison. Lanham appealed. Prior to the submissions of
briefs, Lanham sought remand to the district court for resentencing
in light of United States v. Booker, 125 S. Ct. 738 (2005). His
motion to remand stated that his challenge to his sentence “is the
only issue that Mr. Lanham would pursue on appeal.” The Government
filed its written consent to remand.
We have independently reviewed the matter and conclude
that remand is appropriate. Accordingly, we grant Lanham’s motion
to remand for the limited purpose of resentencing under Booker.2
We dispense with oral argument because the facts and legal
1
We note that although there was an appellate waiver in
Lanham’s plea agreement, this case is distinguishable from our
recent decision in United States v. Blick, 408 F.3d 162 (4th Cir.
2005), because the Government here has not sought to enforce the
waiver.
2
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. See United States v. Hughes, 401 F.3d 540, 546
(applying Booker on plain error review). The court should consider
this sentencing range along with the other factors described in 18
U.S.C. § 3553(a) (2000), 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. §
3553(c)(2) (2000). Id. The sentence must be “within the
statutorily prescribed range and . . . reasonable.” Id. at 546-47.
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contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
VACATED AND REMANDED
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