United States v. Loflin , 240 F. App'x 574 ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 02-4619
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JOHN WILLIAM LOFLIN,
Defendant - Appellant.
On Remand from the Supreme Court of the United States.
(S. Ct. No. 04-5084)
Submitted: May 25, 2007 Decided: July 9, 2007
Before WILKINSON, NIEMEYER, and KING, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
Patricia A. Kurelac, Moundsville, West Virginia, for Appellant.
Thomas E. Johnston, United States Attorney, Shawn Angus Morgan,
Assistant United States Attorney, Clarksburg, West Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
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, 543 U.S. 220 (2005). In United States v. Loflin,
91 F. App’x 873 (4th Cir. 2004), vacated, 543 U.S. 1100 (2005), we
affirmed John William Loflin’s conviction on three counts of
traveling interstate with intent to engage in sexual relations with
a juvenile (Counts 3, 5, and 7), in violation of 18 U.S.C.
§ 2423(b) (2000), and three counts of interstate travel to engage
in criminal sexual activity with a juvenile (Counts 4, 6 and 8), in
violation of 18 U.S.C. § 2423(a) (2000). We also affirmed his
144-month sentence for each count to run concurrently. The Supreme
Court granted Loflin’s petition for certiorari, vacated our
judgment, and remanded for further consideration in light of
Booker. After reviewing Loflin’s appeal in light of Booker, we
vacate his sentence and remand for resentencing.1
Loflin contends that his sentence violates the Sixth
Amendment because the district court at sentencing accepted the
presentence report and increased his base offense level by two
1
Disposition of this appeal was delayed as this court had not
decided whether Booker applied to the child and sex crimes of which
Loflin had been convicted. See 18 U.S.C.A. § 3553(b)(2) (West
Supp. 2007). This court has now held that Booker applies to such
crimes. See United States v. Hecht, 470 F.3d 177, 178 (4th Cir.
2006) (“[W]e agree that section 3553(b)(2) violates the rationale
of Booker, that Hecht’s sentence must be vacated, and that the
action must be remanded for resentencing.”).
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levels for each of the following factors: (1) undue influence under
U.S. Sentencing Guidelines Manual (“USSG”) § 2A3.2(b)(2)(B) (2000),
(2) using a computer or Internet access device to persuade, induce,
entice, or coerce the victim to engage in prohibited sexual conduct
under USSG § 2A3.2(b)(3), and (3) obstruction of justice based on
perjured testimony pursuant to USSG § 3C1.1. Thus, Loflin argues
that his total offense level was increased by six levels based upon
facts not found by the jury or admitted by him.
Because Loflin did not raise a Sixth Amendment issue in
the district court, we review for plain error. United States v.
Hughes, 401 F.3d 540, 547 (4th Cir. 2005). To demonstrate plain
error, Loflin 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, our 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.
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.
543 U.S. at 226-27. The Court remedied the constitutional
violation by making the Guidelines advisory through the removal of
3
two statutory provisions that had rendered them mandatory. Id. at
227.
Here, the district court sentenced Loflin under the
then-mandatory federal Sentencing Guidelines by making the above
three determinations. These findings raised Loflin’s total offense
level from 27 to 33. Without the disputed enhancements, Loflin’s
advisory sentencing range would have been 70-87 months of
imprisonment, given his criminal history category of I. Thus, in
light of Booker and Hughes, we find that the district court’s plain
error in sentencing Loflin, based on facts found only by the court,
affects his substantial rights and warrants correction.2
Accordingly, we vacate Loflin’s sentence and remand for
resentencing consistent with this opinion.3 We dispense with oral
2
Just as we noted in Hughes, “[w]e of course offer no
criticism of the district judge, who followed the law and procedure
in effect at the time” of Loflin’s sentencing. Hughes, 401 F.3d at545 n.4; 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”).
3
Although the Guidelines are no longer mandatory, Booker makes
clear that a sentencing court must still “consult [the] Guidelines
and take them into account when sentencing.” Booker, 543 U.S. at
264. On remand, the district court should first determine the
appropriate sentencing range under the Guidelines, making all
factual findings appropriate for that determination. Hughes, 401
F.3d at 546. The court should consider this sentencing range along
with the other factors described in 18 U.S.C.A. § 3553(a) (West
2000 & Supp. 2007), and then impose a sentence. Hughes, 401 F.3d
at 546. If that sentence falls outside the Guidelines range, the
court should explain its reasons for the departure as required by
18 U.S.C.A. § 3553(c)(2) (West Supp. 2007). Hughes, 401 F.3d at546 & n.5. The sentence must be “within the statutorily prescribed
4
argument because the facts and legal contentions are adequately
presented in the materials before the court and argument would not
aid the decisional process.
VACATED AND REMANDED
range and . . . reasonable.” Id. at 547.
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