United States v. Boggs ( 2006 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 03-4574
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ROBERT WAYNE BOGGS,
Defendant - Appellant.
On Remand from the United States Supreme Court.
(S. Ct. No. 04-6726)
Submitted: February 10, 2006 Decided: March 17, 2006
Before MOTZ and KING, Circuit Judges, and Pasco M. BOWMAN, Senior
Circuit Judge of the United States Court of Appeals for the Eighth
Circuit, sitting by designation.
Affirmed in part; vacated and remanded in part by unpublished per
curiam opinion.
Louis C. Allen, III, Federal Public Defender, Eric D. Placke,
Assistant Federal Public Defender, Greensboro, North Carolina, for
Appellant. Anna Mills Wagoner, United States Attorney, Angela
Hewlett Miller, OFFICE OF THE UNITED STATES ATTORNEY, Greensboro,
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Unpublished opinions are not binding precedent in this circuit.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 Robert Wayne Boggs’s
convictions for kidnapping, transmitting a ransom demand, and using
a gun in conjunction with the kidnapping. United States v. Boggs,
No. 03-4574 (4th Cir. June 9, 2004) (unpublished). The Supreme
Court vacated our decision and remanded Boggs’s case for further
consideration in light of United States v. Booker, 125 S. Ct. 738(2005). Because we conclude that Boggs’s sentence was enhanced
based upon facts not charged in the indictment or admitted by
Boggs, we vacate his sentence and remand for further proceedings.1
In United States v. Booker, 125 S. Ct. 738 (2005), the
Supreme Court applied the rationale of Blakely v. Washington, 542
U.S. 296 (2004), to the federal sentencing guidelines and held that
the mandatory guidelines scheme that provided for sentence
enhancements based on facts found by the court by a preponderance
of the evidence 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
1
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 Boggs’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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under the guidelines, thus making the guidelines advisory. Id. at
756-57 (Breyer, J., opinion of the Court). Subsequently, in United
States v. Hughes, 401 F.3d 540, 546 (4th Cir. 2005), this court
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, not
admitted to by the defendant), constitutes plain error that 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
guidelines scheme. Hughes, 401 F.3d at 546-56.
Because Boggs did not object to the sentencing range of
168 to 210 months’ imprisonment determined by the district court,
we review the district court’s guidelines 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, Boggs 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, this court may exercise its
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).
We have reviewed the record in light of Booker and
conclude that two of the enhancements violated Boggs’s Sixth
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Amendment rights. Boggs received a three-level increase to his
offense level for sexual exploitation of the victim, USSG §
2A4.1(b)(5)(A), and a two-level increase by reference to the
guideline for criminal sexual abuse, USSG §§ 2A4.1(b)(7)(A), 2A3.1.
Neither of these enhancements was based on facts proven to a jury
or admitted by Boggs. The error was therefore plain, Hughes, 401
F.3d at 547-48, and because it significantly increased Boggs’s
guideline sentencing range, the error affected his substantial
rights. Id. at 548. We also conclude that “[t]here can be no
doubt that failure to notice such an error would seriously affect
the fairness, integrity, or public reputation of judicial
proceedings.” Id. at 555. “[A]lthough it is certainly possible
that [Boggs] will receive the same sentence on remand,” the record
does not compel that conclusion. Id. at 556.
Accordingly, while we affirm Boggs’s convictions, we
vacate his sentence and remand for resentencing.2 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
2
On remand, the district court must calculate the appropriate
guidelines 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 guidelines range, the court
should state its reasons for doing so. Hughes, 401 F.3d at 546.
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