United States v. Sullivan ( 2005 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4604
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
PHILLIP ALAN SULLIVAN, a/k/a C.J., a/k/a
Harley Cole Thomason, a/k/a Phillip Allen
Sullivan,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. Frank W. Bullock, Jr.,
District Judge. (CR-04-45)
Submitted: June 24, 2005 Decided: August 25, 2005
Before WILLIAMS, MICHAEL, and MOTZ, Circuit Judges.
Affirmed in part, vacated in part, and remanded by unpublished per
curiam opinion.
Jeffrey B. Welty, Durham, North Carolina, for Appellant. Anna
Mills Wagoner, United States Attorney, Douglas Cannon, 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Unpublished opinions are not binding precedent in this circuit.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:
Phillip Alan Sullivan appeals the forty-six month
sentence imposed after he pled guilty, pursuant to a written plea
agreement, to conspiracy to make, possess, and utter counterfeit
securities, defraud financial institutions, and falsely represent
social security numbers, in violation of 18 U.S.C. § 371 (2000)
(Count 1); aiding and abetting the possession and utterance of a
counterfeit security on September 18, 2003, by Casey Anne Hartig
using the name Betty Faye Bowman, in violation of 18 U.S.C.
§§ 2, 513(a) (2000) (Count 3); and aiding and abetting Hartig’s
false representation of a social security number on August 7, 2003,
in violation of 42 U.S.C.A. § 408(a)(7)(B) (West 2003), and
18 U.S.C. § 2 (Count 8). Citing Blakely v. Washington, 124 S. Ct.
2531 (2004), and United States v. Booker, 125 S. Ct. 738 (2005),
Sullivan asserts on appeal that his sentence is unconstitutional
but does not challenge the validity of his convictions. We affirm
Sullivan’s convictions, vacate Sullivan’s sentence, and remand for
resentencing.
Sullivan contends that his sentence is unconstitutional
in light of Blakely and Booker. Because Sullivan preserved this
issue by objecting to the presentence report based upon Blakely,
this court’s review is de novo. See United States v. Mackins, 315
F.3d 399, 405 (4th Cir. 2003) (“If a defendant has made a timely
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and sufficient Apprendi[1] sentencing objection in the trial court,
and so preserved his objection, we review de novo.”). When a
defendant preserves a Sixth Amendment error, this court “must
reverse unless [it] find[s] this constitutional error harmless
beyond a reasonable doubt, with the Government bearing the burden
of proving harmlessness.” Id. (citations omitted); see United
States v. White, 405 F.3d 208, 223 (4th Cir. 2005) (discussing
difference in burden of proving that error affected substantial
rights under harmless error standard in Fed. R. App. P. 52(a), and
plain error standard in Fed. R. App. P. 52(b)).
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.
125 S. Ct. at 746, 750 (Stevens, J., opinion of the Court). The
Court remedied the constitutional violation by making the
guidelines advisory through the removal of two statutory provisions
that had rendered them mandatory. Id. at 746 (Stevens, J., opinion
of the Court); id. at 756-67 (Breyer, J., opinion of the Court).
Here, the district court sentenced Sullivan under the
mandatory federal sentencing guidelines and applied enhancements
based on facts found by a preponderance of the evidence.
Specifically, the court established a base offense level of six
1
Apprendi v. New Jersey, 530 U.S. 466 (2000).
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under U.S. Sentencing Guidelines Manual (“USSG”) § 2B1.1(a)(2) and
§ 2X1.1(a) (2003). The court also imposed a six-level enhancement
because the loss attributed to Sullivan was more than $30,000 but
less than $70,000, see USSG § 2B1.1(b)(1)(D); a two-level
enhancement because “the offense otherwise involved sophisticated
means,” USSG § 2B1.1(b)(8)(C); a two-level enhancement because “the
offense involved . . . the unauthorized transfer or use of any
means of identification unlawfully to . . . obtain any other means
of identification[,]” USSG § 2B1.1(b)(9)(C)(i); a two-level
enhancement for Sullivan’s role in the offense as a leader or
organizer, see USSG § 3B1.1(c); and a three-level downward
adjustment for acceptance of responsibility, see USSG § 3E1.1.
These findings yielded a total offense level of fifteen.
Our review of the record in this case convinces us that
at least one Sixth Amendment violation occurred with respect to
Sullivan’s sentencing. Specifically, Sullivan did not admit facts
at the plea hearing to support the two-level enhancement premised
on the sophisticated nature of the offenses. As a result, the
district court’s imposition of this enhancement violated the Sixth
Amendment.2
2
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 Sullivan’s sentencing.
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Accordingly, we affirm Sullivan’s convictions, vacate
Sullivan’s sentence, and remand for resentencing.3 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
3
Although the guidelines are no longer mandatory, Booker makes
clear that a sentencing court must still “consult [the]
[g]uidelines and take them into account when sentencing.” 125 S.
Ct. at 767 (Breyer, J., opinion of the Court). 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. 2005), 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 2000 & Supp. 2005). Hughes, 401 F.3d at 546. The sentence
must be “within the statutorily prescribed range and . . .
reasonable.” Id. at 547.
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