United States v. Muhammad ( 2006 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 03-4757
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ABDUL HAFEEZ MUHAMMAD,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. W. Earl Britt, Senior
District Judge. (CR-96-99)
Submitted: February 9, 2006 Decided: March 7, 2006
Before NIEMEYER, WILLIAMS, and TRAXLER, Circuit Judges.
Affirmed in part, vacated in part, and remanded by unpublished per
curiam opinion.
Walter H. Paramore, III, Jacksonville, North Carolina, for
Appellant. Frank D. Whitney, United States Attorney, Anne M.
Hayes, Assistant United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Abdul Hafeez Muhammad appeals his convictions and 121-month
sentence for one count of money laundering under 18 U.S.C. § 1956and multiple counts of wire fraud under 18 U.S.C. § 1343.
Muhammad’s attorney initially filed a brief in accordance with
Anders v. California, 386 U.S. 738, 18 L. Ed. 2d 493 (1967),
raising various issues, but stating that he found no meritorious
grounds for appeal. Muhammad filed a pro se supplemental brief
raising these and other issues. On May 4, 2005, the court allowed
the parties to file supplemental briefs addressing the impact upon
the appeal, if any, of United States v. Booker, 543 U.S. 220, 160
L. Ed. 2d 621, 125 S. Ct. 738 (2005). Muhammad and his attorney
each filed supplemental briefs. The government filed a responsive
brief, conceding that Muhammad’s sentence should be vacated under
Booker.
We agree that Muhammad’s sentence should be vacated. Because
this issue was not raised below, we review for plain error. See
United States v. Hughes, 401 F.3d 540, 546-60 (4th Cir. 2005).
Muhammad’s base offense level was increased from 23 to 29 based on
facts that the government did not charge in the indictment, that
Muhammad did not admit, and that the jury did not find. Ignoring
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these enhancements yields a sentencing range of 51 to 63 months,
well below the 121 months he received.*
In accordance with Anders, we have reviewed the entire record
in this case for any other meritorious issue and have found none.
Accordingly, although we affirm Muhammad’s convictions, we vacate
his sentence and remand for proceedings consistent with Hughes, 401
F.3d at 546 (citing Booker, 125 S. Ct. at 764-65, 767). 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 IN PART,
AND REMANDED
*
As we noted in Hughes, 401 F.3d at 545 n.4, “we of course
offer no criticism of the district judge, who followed the law and
procedure in effect at the time” of sentencing.
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