United States v. Gracius , 143 F. App'x 552 ( 2005 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4141
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ANTOINE GRACIUS, a/k/a Julian, a/k/a Antoine
Gracias,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Salisbury. William L. Osteen,
District Judge. (CR-97-114)
Submitted: August 31, 2005 Decided: September 22, 2005
Before WILLIAMS, KING, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
David B. Freedman, WHITE & CRUMPLER, Winston-Salem, North Carolina,
for Appellant. Anna Mills Wagoner, United States Attorney,
Clifton T. Barrett, Assistant United States Attorney, Greensboro,
North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Antoine Gracius pled guilty to conspiracy to distribute
fifty grams or more of cocaine base (crack), 21 U.S.C. § 846(2000), and received a sentence of 168 months imprisonment.
Gracius appeals his sentence,* contending that he is entitled to be
resentenced in light of United States v. Booker, 125 S. Ct. 738(2005), because the district court plainly erred in sentencing him
under a mandatory guideline sentencing scheme. We affirm.
In Booker, the Supreme Court 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. 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.
*
Gracius’ first pro se appeal was dismissed as untimely.
Gracius then filed a motion to vacate under 28 U.S.C. § 2255(2000), alleging that his attorney failed to file a notice of
appeal as he requested. Relief was granted under United States v.
Peak, 992 F.2d 39, 42 (4th Cir. 1993) (failure to note requested
appeal is denial of Sixth Amendment right to assistance of
counsel). However, due to a clerical error, the amended judgment
order entered in October 2001 was not sent to Gracius’ attorney and
he again failed to perfect an appeal. In 2002, Gracius filed
another § 2255 motion seeking to set aside the judgment. The
district court found that relief was warranted and entered a second
amended judgment on January 11, 2005. Because the district court
granted Gracius’ original § 2255 motion and reentered judgment to
permit a direct appeal, the next § 2255 motion was not a second or
successive motion within the meaning of § 2255. In re Goddard, 170
F.3d 435 (4th Cir. 1999).
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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.
In United States v. White, 405 F.3d 208 (4th Cir. 2005),
we held that treating the guidelines as mandatory was plain error
in light of Booker, id. at 216-17, but we declined to presume
prejudice. Id. at 217-22. We held that the “prejudice inquiry,
therefore, is . . . whether after pondering all that happened
without stripping the erroneous action from the whole, . . . the
judgment was . . . substantially swayed by the error.” Id. at 223(internal quotation marks and citations omitted). To make this
showing, a defendant must “demonstrate, based on the record, that
the treatment of the guidelines as mandatory caused the district
court to impose a longer sentence than it otherwise would have
imposed.” Id. at 224. When “the record as a whole provides no
nonspeculative basis for concluding that the treatment of the
guidelines as mandatory ‘affect[ed] the district court’s selection
of the sentence imposed,’” id. at 223 (quoting Williams v. United
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States, 503 U.S. 193, 203 (1992)), the error did not affect the
defendant’s substantial rights. Id. at 225 (affirming sentence);
see United States v. Collins, 412 F.3d 515, 524-25 (4th Cir. 2005)
(finding that defendant failed to demonstrate prejudice from being
sentenced under mandatory sentencing guidelines).
Here, the district court made no fact findings that
increased Gracius’ sentence beyond those facts he admitted by
stipulating that he was responsible for more than 1.5 kilograms of
crack. Therefore, no Sixth Amendment violation occurred. The
court imposed Gracius’ sentence under a mandatory sentencing
guidelines scheme, which was plain error. White, 405 F.3d at
216-17. However, because the record contains no nonspeculative
basis on which this court could conclude that the district court
would have sentenced Gracius to a lesser sentence had the court
proceeded under an advisory guideline scheme, Gracius has failed to
demonstrate that the plain error in sentencing him under a
mandatory guidelines scheme affected his substantial rights.
We therefore affirm the sentence imposed by the district
court. 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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