United States v. Billiott ( 2005 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 03-4539
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JOSEPH ALVIN BILLIOTT, a/k/a Al Billiott,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Florence. Terry L. Wooten, District Judge.
(CR-01-1152)
Submitted: August 12, 2005 Decided: August 24, 2005
Before WILKINSON, NIEMEYER, and MOTZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
James T. McBratney, Jr., MCBRATNEY LAW FIRM, P.A., Florence, South
Carolina, for Appellant. J. Strom Thurmond, Jr., United States
Attorney, Dean A. Eichelberger, Assistant United States Attorney,
Columbia, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Joseph Alvin Billiott appeals the twenty-six month
sentence imposed after he pleaded guilty, pursuant to a plea
agreement, to one count of conspiracy to commit wire fraud, in
violation of 18 U.S.C. §§ 371, 1343 (2000). Because we find no
error in the determination of Billiott’s sentence, we affirm.
On appeal, Billiott asserts that his sentence violates
the Supreme Court’s holding in Blakely v. Washington, 542 U.S. 296(2004). He specifically asserts that the enhancements to his
offense level that were based upon more than minimal planning and
his role in the offense violated the Sixth Amendment because facts
supporting these enhancements were not found by a jury, or found by
a beyond a reasonable doubt standard.
In United States v. Booker, 125 S. Ct. 738 (2005), the
Supreme Court applied the rationale of Blakely to the federal
sentencing guidelines and held that the mandatory guidelines scheme
that provided for sentence enhancements based on facts found by the
court violated the Sixth Amendment. Booker, 125 S. Ct. at 746-48,
755-56 (Stevens, J., opinion of the Court). The Court remedied the
constitutional violation by severing and excising the statutory
provisions that mandate sentencing and appellate review under the
guidelines, thus making the guidelines advisory. Id. at 756-57
(Breyer, J., opinion of the Court).
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Subsequently, in United States v. Hughes, 401 F.3d 540,
546 (4th Cir. 2005), we held that a sentence that was imposed under
the pre-Booker mandatory sentencing scheme and was enhanced based
on facts found by the court, not by a jury (or, in a guilty plea
case, admitted by the defendant), constitutes plain error. That
error affects the defendant’s substantial rights and warrants
reversal under Booker when the record does not disclose what
discretionary sentence the district court would have imposed under
an advisory guideline scheme. Hughes, 401 F.3d at 546-56.
Sentencing courts were directed to calculate the appropriate
guideline range, consider that range in conjunction with other
relevant factors under the guidelines and 18 U.S.C.A. § 3553(a)
(West 2000 & Supp. 2005), and impose a sentence. If the district
court imposes a sentence outside the guideline range, the court
should state its reasons for doing so. Id. at 546.
In determining the sentencing range under the sentencing
guidelines,* the probation officer enhanced the offense level by
two levels pursuant to USSG § 2F1.1(b)(2) because the crime
involved more than minimal planning or a scheme to defraud more
than one victim, and by two levels pursuant to USSG § 3B1.1(c)
because Billiott was an organizer, leader, manager, or supervisor
in the criminal activity. After a three-level reduction for
acceptance of responsibility, Billiott’s total offense level was
*
U.S. Sentencing Guidelines Manual (1997) (“USSG”).
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sixteen. This offense level and Billiott’s criminal history
category of I resulted in a sentencing range of twenty-one to
twenty-seven months of imprisonment.
Because Billiott did not object to the presentence
report, we review the district court’s guideline calculation for
plain error. United States v. Olano, 507 U.S. 725, 732 (1993);
Hughes, 401 F.3d at 547. Under the plain error standard, Billiott
must show: (1) there was error; (2) the error was plain; and
(3) the error affected his substantial rights. Olano, 507 U.S. at
732-34. Even when these conditions are satisfied, we may exercise
our discretion to notice the error only if the error “seriously
affect[s] the fairness, integrity or public reputation of judicial
proceedings.” Id. at 736 (internal quotation marks omitted).
Our review of the record leads us to conclude that the
enhancement for more than minimal planning or a scheme to defraud
more than one victim was not imposed in violation of Billiott’s
Sixth Amendment rights. Although the facts supporting this
enhancement were not charged in the indictment, Billiott admitted
in the plea agreement that more than one victim suffered financial
loss, thus demonstrating a scheme to defraud more than one victim.
With regard to the enhancement for Billiott’s role in the offense,
we agree with Billiott that this enhancement is not supported by
any facts alleged in the indictment or admitted by him during the
plea hearing. We conclude, however, that no Sixth Amendment error
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occurred in the imposition of this enhancement. If this
enhancement is removed, Billiott’s total offense level would be
seventeen, and his sentencing range twenty-four to thirty months.
Because the twenty-six-month sentence imposed does not exceed the
guideline range calculated without the improper enhancement,
Billiott’s sentence does not violate the Sixth Amendment. United
States v. Evans, __ F.3d __, 2005 WL 1705531 at *1 n.4 (4th Cir.
July 22, 2005) (“For purposes of determining whether the district
court erred, we necessarily use [the] guideline range based on the
facts [appellant] admitted before adjusting that range for
acceptance of responsibility.”).
We therefore affirm Billiott’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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