United States v. Gillian , 158 F. App'x 434 ( 2005 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 03-4964
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
BOBBY GILLIAN,
Defendant - Appellant.
On Remand from the United States Supreme Court.
(S. Ct. No. 04-6186)
Submitted: October 7, 2005 Decided: December 14, 2005
Before WIDENER, MICHAEL, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Mary Lou Newberger, Federal Public Defender, David R. Bungard,
Assistant Federal Public Defender, Charleston, West Virginia, for
Appellant. Kasey Warner, United States Attorney, John L. File,
Assistant United States Attorney, Charleston, West Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Bobby Gillian pled guilty to one count of possession with
intent to distribute a quantity of cocaine, in violation of 21
U.S.C. § 841(a)(1) (2000) and one count of being a felon in
possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and
924(a)(2) (2000). He was sentenced to 188 months in prison for the
drug charge and 120 months in prison for the firearm charge, to be
served concurrently. We affirmed his conviction and sentence. See
United States v. Gillian, No. 03-4964, 99 Fed. App. 477 (4th Cir.
June 2, 2004) (unpublished). The Supreme Court granted Gillian’s
petition for writ of certiorari, vacated this court’s judgment, and
remanded for further proceedings in light of United States v.
Booker, 125 S. Ct. 738 (2005).
Gillian’s sentence was imposed prior to the decisions in
Booker and Blakely v. Washington, 542 U.S. 296 (2004). Gillian did
not raise objections to his sentence based on the mandatory nature
of the sentencing guidelines or the district court’s application of
sentencing enhancements based on facts not admitted by Gillian or
found by a jury beyond a reasonable doubt. Therefore, we review
his sentence for plain error. See United States v. Hughes, 401
F.3d 540, 547 (4th Cir. 2005).
Consequently, Gillian must show: (1) an error occurred;
(2) the error was plain; (3) the error affected his substantial
rights; and (4) the error calls into question the fairness,
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integrity, or public reputation of judicial proceedings. See
United States v. Olano, 507 U.S. 725, 732 (1993). If the three
elements of the plain error standard are met, the court may
exercise its discretion to notice error only if the error seriously
affects “the fairness, integrity, or public reputation of judicial
proceedings.” Id. at 736 (citation omitted).
We conclude that the district court erred because the
drug quantity attributed to Gillian at sentencing was based on
certain facts found by the court rather than admitted by Gillian.*
Hughes, 401 F.3d at 546-47. That error was plain because Booker
abrogated the previous law of this circuit. Id. at 547-48. To
affect Gillian’s substantial rights, however, the sentence imposed
must have been longer than what could have been imposed based on
the guilty plea. Id. at 548.
Gillian’s guilty plea, without any specification as to
the drug quantity, subjected Gillian to an offense level of thirty-
two pursuant to his status as a career offender. See USSG
§ 4B1.1(b)(C). Based on a total offense level of thirty-two and a
criminal history category of VI, Gillian’s unenhanced sentencing
guidelines range was 210 to 262 months’ imprisonment. See USSG,
*
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 Gillian’s 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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Sentencing Table; see also United States v. Evans, 416 F.3d 298,
300 n.4 (4th Cir. 2005) (requiring that in determining the correct
guideline range, the offense level to be used is the base level
determined by admitted conduct or facts found by the jury “before
adjusting that range for acceptance of responsibility”). Because
Gillian’s 188-month sentence does not exceed the maximum of this
range, there was no Sixth Amendment violation. See Evans, 416 F.3d
at 300-01 (holding that if sentence does not exceed maximum
authorized by facts admitted by defendant or found by jury, there
is no Sixth Amendment violation).
Accordingly, we affirm Gillian’s sentence after our
reconsideration in light of 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
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