United States v. Sealock , 160 F. App'x 315 ( 2005 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4709
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ALAN ROSS SEALOCK, JR.,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. Marvin J. Garbis, Senior District Judge.
(CR-02-344-MJG)
Submitted: November 18, 2005 Decided: December 29, 2005
Before WILLIAMS, MOTZ, and DUNCAN, Circuit Judges.
Affirmed in part, vacated in part, and remanded by unpublished per
curiam opinion.
David R. Solomon, GLASER & SOLOMON, L.L.C., Baltimore, Maryland,
for Appellant. Allen F. Loucks, United States Attorney, Angela R.
White, Assistant United States Attorney, Baltimore, Maryland, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Alan Ross Sealock, Jr., appeals his sentence of 115
months’ imprisonment after a plea of guilty to being a felon in
possession of a firearm in violation of 18 U.S.C. § 922(g) (2000).
Sealock’s only claim is that the district court erred in sentencing
him under a mandatory guidelines scheme in light of United States
v. Booker, 125 S. Ct. 738 (2005). Sealock asserts his case should
be remanded for imposition of the district court’s alternative
sentence of seventy-nine months. The Government asks this court to
direct the district court to amend its judgment to impose the
seventy-nine month sentence. For the reasons set forth below, we
affirm Sealock’s conviction, but vacate his sentence and remand for
resentencing.
At sentencing, the district court imposed an alternative
sentence based on its understanding of Blakely v. Washington, 542
U.S. 296 (2004), and as suggested by United States v. Hammoud, 381
F.3d 316, 353-54 (4th Cir. 2004) (en banc), judgment vacated, 125
S. Ct. 1051 (2005). The district court interpreted Blakely to mean
that judicial fact finding regarding any sentencing factors (and
using a preponderance of the evidence standard rather than beyond
a reasonable doubt standard) was impermissible. Based on this
understanding, and applying all of the adjustments and departures
associated with its prior guidelines calculation except for a four-
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level firearms enhancement, the district court announced a lower
alternative sentence of seventy-nine months.
In Booker, the Supreme Court concluded that even in the
absence of a Sixth Amendment violation, the imposition of a
sentence under the mandatory guidelines regime was error. Booker,
125 S. Ct. at 769; see also United States v. White, 405 F.3d 208,
216-217 (4th Cir. 2005). This court explained in United States v.
Hughes, 401 F.3d 540, 553 (4th Cir. 2005), that sentencing under a
mandatory regime is “a separate class of error . . . distinct from
the Sixth Amendment claim that gave rise to the decision in
Booker.” The court recognized that “[t]his error . . . may be
asserted even by defendants whose sentences do not violate the
Sixth Amendment.” Id. Such is the case here.
In White, we held that treating the guidelines as
mandatory was plain error in light of Booker. Id. at 216-17. We
declined to presume prejudice, id. at 217-22, holding that the
“prejudice inquiry, therefore, is . . . whether after pondering all
that happened without stripping the erroneous action from the
whole, . . . the judgment was . . . substantially swayed by the
error.” Id. at 223 (internal quotation marks and citations
omitted). To make this showing, a defendant must “demonstrate,
based on the record, that the treatment of the guidelines as
mandatory caused the district court to impose a longer sentence
than it otherwise would have imposed.” Id. at 224. Because “the
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record as whole provide[d] no nonspeculative basis for concluding
that the treatment of the guidelines as mandatory ‘affect[ed] the
district court’s selection of the sentence imposed,’” id. at 223
(quoting Williams v. United States, 503 U.S. 193, 203 (1992)), we
concluded in White that the error did not affect the defendant’s
substantial rights and affirmed the sentence. Id. at 225.
Here, unlike in White, the district court gave an
alternative sentence of seventy-nine months’ imprisonment. Because
the alternative sentence is substantially lower than the 115-month
sentence imposed by the court, the record provides a non-
speculative basis for concluding the treatment of the guidelines as
mandatory affected the district court’s selection of the sentence
imposed.
The parties ask that the judgment simply be amended to
impose the alternative seventy-nine month sentence. However, the
district court’s alternative sentence relied on assumptions
inconsistent with the Supreme Court’s later decision in Booker, and
the district court noted that if the guidelines were a factor to be
considered in sentencing, as the Court essentially held in Booker,
he could not guess what his sentence would be. Thus, we decline
the parties’ request that imposition of the alternative sentence be
directed. Instead, in deference to the district court, we remand
for resentencing anew. On remand, the district court should first
determine the appropriate sentencing range under the guidelines,
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making all factual findings appropriate for that determination.
See United States v. Hughes, 401 F.3d 540, 546 (4th Cir. 2005)
(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 imposing a non-guidelines sentence, 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.
In sum, we affirm Sealock’s conviction, vacate his
sentence, and remand for resentencing in accordance with Booker.*
We dispense with oral argument because the facts and legal
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
*
Just as we noted in United States v. Hughes, 401 F.3d 540,
545 n.4 (4th Cir. 2005),”[w]e of course offer no criticism of the
district judge, who followed the law and procedure in effect at the
time” of Sealock’s sentencing.
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