United States v. Faris , 162 F. App'x 199 ( 2005 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 03-4865
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
IYMAN FARIS,
Defendant - Appellant.
On Remand from the United States Supreme Court.
(S. Ct. No. 04-6848)
Submitted: November 23, 2005 Decided: December 29, 2005
Before WILKINS, Chief Judge, and NIEMEYER and TRAXLER, Circuit
Judges.
Affirmed by unpublished per curiam opinion.
David B. Smith, ENGLISH & SMITH, Alexandria, Virginia, for
Appellant. Joseph N. Kaster, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C.; Paul J. McNulty, United States Attorney, Neil
Hammerstrom, Jr., Assistant United States Attorney, Alexandria,
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
This case is before us on remand from the United States
Supreme Court for further consideration in light of United
States v. Booker, 125 S. Ct. 738 (2005). In our prior opinion, we
affirmed Faris’s conviction and 240-month sentence imposed after he
pleaded guilty, pursuant to a plea agreement, to one count of
conspiracy to provide material support to a foreign terrorist
organization, in violation of 18 U.S.C.A. §§ 371, 2339B (West Supp.
2005), and one count of providing material support to a foreign
terrorist organization, in violation of 18 U.S.C.A. § 2339A (West
Supp. 2005). United States v. Faris, 388 F.3d 452 (4th Cir. 2004),
vacated, 125 S. Ct. 1637 (2005). After reviewing Faris’s appeal in
light of Booker, we affirm his conviction for the reasons stated in
our prior opinion and affirm his sentence.
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 746, 750 (Stevens, J., opinion of the Court). The
Court remedied the constitutional violation by severing two
statutory provisions and thereby making the Guidelines advisory.
Id. at 756-67 (Breyer, J., opinion of the Court). After Booker,
courts must calculate the appropriate Guideline range, consider the
range in conjunction with other relevant factors under the
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Guidelines and 18 U.S.C.A. § 3553(a) (West 2000 & Supp. 2005), and
impose a sentence. If a district court imposes a sentence outside
the Guideline range, the court must state its reasons for doing so
as required by 18 U.S.C.A. § 3553(c)(2) (West 2000 & Supp. 2005).
Hughes, 401 F.3d at 546. The sentence must be “within the
statutorily prescribed range and . . . reasonable.” Id. at 547.
Faris did not rely on Booker in the district court
because he was sentenced before the Supreme Court decided that
case, and he did not make a Sixth Amendment objection to the
Guideline calculations. Consequently, the district court’s
sentence is reviewed for plain error. Fed. R. Crim. P. 52(b);
United States v. Hughes, 401 F.3d 540, 547 (4th Cir. 2005). To
demonstrate plain error, Faris must establish that error occurred,
that it was plain, and that it affected his substantial rights.
Id. at 547-48. If a defendant satisfies these requirements, the
court’s “discretion is appropriately exercised only when failure to
do so would result in a miscarriage of justice, such as when the
defendant is actually innocent or the error seriously affects the
fairness, integrity or public reputation of judicial proceedings.”
Id. at 555 (internal quotation marks and citation omitted).
Faris concedes that no Sixth Amendment error occurred in
the determination of his sentence because the Guideline*
*
See U.S. Sentencing Guidelines Manual (USSG) § 2D1.1(c)(4)
(2001).
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calculations were supported by his admissions during the guilty
plea hearing and the written statement of facts incorporated into
his plea agreement, which he acknowledged during the plea hearing.
Our review of the record supports Faris’s concession that his
sentence is not affected by Sixth Amendment error.
Faris also concedes that he cannot demonstrate any
prejudice caused by the mandatory application of the Guidelines.
Faris’s offense level and criminal history resulted in a Guideline
range of imprisonment of 360 months to life. The statutory maximum
term of imprisonment for the offenses to which Faris pleaded
guilty, however, was 240 months, which the district court imposed.
Because the record provides no indication that the district court
would have imposed a lesser sentence under an advisory Guidelines
scheme, we find no error in the mandatory application of the
Guidelines. United States v. White, 405 F.3d 208, 216-24 (4th Cir.
2005).
Accordingly, we affirm Faris’s conviction and sentence.
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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