United States v. Wilson , 156 F. App'x 614 ( 2005 )


Menu:
  •                             UNPUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    No. 03-4578
    UNITED STATES OF AMERICA,
    Plaintiff - Appellee,
    versus
    JAMES LAWRENCE WILSON,
    Defendant - Appellant.
    On Remand from the United States Supreme Court.
    (S. Ct. No. 04-5732)
    Submitted:   November 9, 2005             Decided:   December 5, 2005
    Before NIEMEYER and GREGORY, Circuit Judges, and HAMILTON, Senior
    Circuit Judge.
    Affirmed in part; vacated and remanded in part by unpublished per
    curiam opinion.
    Andrew B. Banzhoff, Asheville, North Carolina, for Appellant.
    Gretchen C. F. Shappert, United States Attorney, Charlotte, North
    Carolina; Donald D. Gast, Assistant United States Attorney,
    Asheville, North Carolina, 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    Unpublished opinions are not binding precedent in this circuit.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.     We previously affirmed James Lawrence Wilson’s
    conviction for conspiracy to distribute fifty or more grams of
    methamphetamine    and   his   eighty-seven    month      sentence.   United
    States v. Wilson, No. 03-4578 (4th Cir. May 7, 2004) (unpublished).
    The Supreme Court vacated our decision and remanded Wilson’s 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 Wilson did not raise a Sixth Amendment
    challenge to his guidelines sentence in the district court, our
    review is for plain error.       United States v. Hughes, 
    401 F.3d 540
    ,
    547 (4th Cir. 2005).
    The    facts   found    by   the   jury   are    that   Wilson   was
    responsible for fifty or more grams of methamphetamine distribution
    as part of the charged conspiracy.*        This drug quantity corresponds
    with a base offense level of twenty-six, see USSG § 2D1.1(c)(7),
    and a sentencing range of sixty-three to seventy-eight months’
    *
    The district court’s determination that the conspiracy
    created a substantial risk of harm to human life was not a factor
    considered by the jury.     Accordingly, for the purpose of the
    guidelines calculation we do not consider this factor under U.S.
    Sentencing Guidelines Manual § 2D1.1(b)(5)(B) (2002).
    - 2 -
    imprisonment.    See USSG Ch. 5, Pt. A, table. (applying Wilson’s
    criminal history category of I). Wilson’s sentence of eighty-seven
    months exceeds this range.       Because this error affects Wilson’s
    substantial rights, we conclude it is plainly erroneous.                See
    Hughes, 
    401 F.3d at 547-48
    .
    Accordingly, although we affirm Wilson’s conviction for
    the reasons stated in our prior opinion of May 7, 2004, we vacate
    the   sentence   imposed   by   the   district   court   and   remand   for
    resentencing in accordance with Booker.          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
    - 3 -
    

Document Info

Docket Number: 03-4578

Citation Numbers: 156 F. App'x 614

Judges: Niemeyer, Gregory, Hamilton

Filed Date: 12/5/2005

Precedential Status: Non-Precedential

Modified Date: 11/5/2024