United States v. Brooks , 157 F. App'x 603 ( 2005 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4049
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
VERNON BROOKS,
Defendant - Appellant.
On Remand from the United States Supreme Court.
(S. Ct. No. 04-8433)
Submitted: November 9, 2005 Decided: December 6, 2005
Before WILKINSON, WILLIAMS, and SHEDD, Circuit Judges.
Affirmed in part; vacated and remanded in part by unpublished per
curiam opinion.
William J. Dinkin, DINKIN, PURNELL & JOHNSON, PLLC, Richmond,
Virginia, for Appellant. John L. Brownlee, United States Attorney,
Jennifer R. Bockhorst, Assistant United States Attorney, Abingdon,
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
This case is before the court on remand from the United
States Supreme Court. We previously affirmed Vernon Brooks’
convictions for conspiracy to distribute oxycodone and possession
of oxycodone with intent to distribute within 1000 feet of a
protected area, in violation of 21 U.S.C. §§ 841(a)(1), 846, 849
(2000). United States v. Brooks, No. 04-4049 (4th Cir. Oct. 28,
2004) (unpublished). The Supreme Court vacated our decision and
remanded Brooks’ case for further consideration in light of United
States v. Booker, 125 S. Ct. 738 (2005).
A Sixth Amendment error occurs when a district court
imposes a sentence greater than the maximum permitted based on
facts found by a jury or admitted by the defendant. Booker, 125 S.
Ct. at 756. Because Brooks did not raise a Sixth Amendment
challenge or object to the mandatory application of the guidelines
in the district court, our review is for plain error. United
States v. Hughes, 401 F.3d 540, 547 (4th Cir. 2005).
The facts that are supported by the verdict of the jury
are that Brooks is responsible for an unspecified quantity of
oxycodone as part of the conspiracy of which he was a part, and
that the conspiracy occurred near a protected area. These facts
correspond with an offense level of eight, see U.S. Sentencing
Guidelines Manual §§ 2D1.1(c)(17), 2D1.2(a)(1) (2003), and a
sentencing range of zero to six months’ imprisonment. See USSG Ch.
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5, Pt. A, table (based on Brooks’ criminal history category of I
(one)). Brooks’ sentence of 210 months exceeds this range.
Because this error affects Brooks’ substantial rights, we conclude
it is plainly erroneous.* See Hughes, 401 F.3d at 547-48.
Accordingly, we vacate the sentence imposed by the
district court and remand for resentencing in accordance 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. See Hughes, 401 F.3d at 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. We affirm Brooks’
*
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 Brooks’ 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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convictions for the reasons stated in our prior opinion of October
28, 2004. 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 IN PART;
VACATED AND REMANDED IN PART
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