United States v. Felder ( 2005 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4422
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
CARL RICHARD FELDER, JR., a/k/a Rab,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Charleston. David C. Norton, District Judge.
(CR-99-751)
Submitted: August 26, 2005 Decided: October 18, 2005
Before LUTTIG, MOTZ, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Jessica Salvini, SALVINI & BENNETT, L.L.C., Greenville, South
Carolina, for Appellant. J. Strom Thurmond, Jr., United States
Attorney, Miller W. Shealy, Jr., Assistant United States Attorney,
Charleston, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
On May 17, 2000, Carl Richard Felder, Jr., pled guilty to
conspiracy to possess with intent to distribute and distribute a
quantity of cocaine base in violation of 21 U.S.C. §§ 841(a)(1),
846. On July 6, 2000, after pleading guilty and awaiting
sentencing, Felder violated his bond by fleeing his residence and
becoming a fugitive. Felder was apprehended by the U.S. Marshals
Service on June 3, 2002. On October 16, 2002, Felder was sentenced
to 240 months’ imprisonment. On appeal, we vacated the district
court’s judgment and remanded for reconsideration of whether Felder
qualified as a career offender and, if not, resentencing. See
United States v. Felder, Nos. 02-4858, 02-4922, 2004 WL 728197 (4th
Cir. Apr. 6, 2004) (unpublished).
On remand, a revised Presentence Report (“PSR”) was
prepared. The PSR recommended, as it had before, adding two levels
to the base offense level for obstruction of justice under U.S.
Sentencing Guidelines § 3C1.1, which provides in application note
4(e) that obstruction of justice includes “escaping or attempting
to escape from custody before trial or sentencing.” No objections
were made to the PSR. The court concluded Felder was not a career
offender and sentenced him to 72 months’ imprisonment.
In this second appeal, Felder asserts his sentence is
unconstitutional in light of Blakely v. Washington, 542 U.S. 296(2004), the precursor to United States v. Booker, 125 S. Ct. 738- 2 -
(2005). Felder argues that because a jury did not determine the
factual basis for the obstruction of justice enhancement and he did
not admit to the underlying facts supporting the enhancement, the
sentence violates the Sixth Amendment. After thoroughly reviewing
the record, we conclude Felder did admit to the underlying facts
supporting the enhancement and the sentence therefore does not
violate the Sixth Amendment.
Booker applies to all cases pending on direct review at
the time it was decided. Booker, 125 S. Ct. at 769 (citing
Griffith v. Kentucky, 479 U.S. 314, 328 (1987)). In Booker, the
Supreme Court held that the federal sentencing guidelines’
mandatory scheme, which provides for sentencing enhancements based
on facts found by the court, violated the Sixth Amendment. Booker,
125 S. Ct. at 746 (Stevens, J., opinion of the Court). The Court
remedied the constitutional violation by severing two statutory
provisions, 18 U.S.C.A. § 3553(b)(1) (West Supp. 2004) (requiring
sentencing courts to impose a sentence within the applicable
guideline range), and 18 U.S.C.A. § 3742(e) (West 2000 & Supp.
2004) (setting forth appellate standards of review for guideline
issues), thereby making the guidelines advisory. Booker, 125 S.
Ct. at 756-57 (Breyer, J., opinion of the Court)); United States v.
Hughes, 401 F.3d 540, 546 (4th Cir. 2005). After Booker, courts
must calculate the appropriate guideline range, consider the range
in conjunction with other relevant factors under the guidelines and
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18 U.S.C. § 3553(a) (2000), and impose a sentence. If a court
imposes a sentence outside the guideline range, the court must
state its reasons for doing so. Hughes, 401 F.3d at 546. This
remedial scheme applies to any sentence imposed under the mandatory
guidelines, regardless of whether the sentence violates the Sixth
Amendment. Id. at 547 (citing Booker, 125 S. Ct. at 769).
Because Felder did not preserve a Booker claim in the
district court, his constitutional claims under Blakely and Booker
are reviewed for plain error. Hughes, 401 F.3d at 547. To
demonstrate plain error, a defendant must establish that error
occurred, that it was plain, and that it affected his substantial
rights. United States v. Olano, 507 U.S. 725, 731-32 (1993);
Hughes, 401 F.3d at 547-48. If a defendant establishes these
requirements, “[o]ur discretion is appropriately exercised only
when failure to do so would result in a miscarriage of justice,
such as when the defendant is actually innocent or the error
seriously affects the fairness, integrity or public reputation of
judicial proceedings.” Hughes, 401 F.3d at 555 (internal quotation
marks and citation omitted).
We conclude the district court did not plainly err in
applying the obstruction of justice enhancement. Olano, 507 U.S.
at 731-32; Hughes, 401 F.3d at 546-47, 556. At sentencing,
Felder’s counsel stated, “[w]hat the Government said is correct,
and he was on bond and was a fugitive until sometime later when he
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was apprehended.” Felder’s counsel further argued that Felder had
been punished enough for being a fugitive. She stated that if
Felder had not been a fugitive, he would not have had the two-level
increase in his offense level for obstruction of justice, and he
would have been entitled to a decrease of three levels for
acceptance of responsibility. Furthermore, in his appellate brief,
Felder acknowledges that he fled his residence and was a fugitive.
We therefore conclude Felder admitted to the facts supporting the
obstruction of justice enhancement and there is no Sixth Amendment
violation. Booker, 125 S. Ct. at 746.
We next consider whether the court plainly erred by
applying the sentencing guidelines as mandatory and whether Felder
demonstrates such error affected his substantial rights. See
United States v. White, 405 F.3d 208, 223 n.10 (4th Cir. 2005)
(citing Hughes, 401 F.3d at 551); see also Olano, 507 U.S. at 734-
35. We conclude that Felder fails to make such a showing. The
court sentenced Felder in the middle of the applicable guidelines
range. Moreover, the court did not indicate a sentence below the
guidelines range was appropriate. Accordingly, there is no non-
speculative basis for concluding that the district court would have
imposed a shorter sentence on Felder had it known that the
guidelines should not have been applied in a mandatory fashion.
Therefore, we conclude the error, even if plain, did not affect
Felder’s substantial rights.
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Accordingly, we affirm Felder’s 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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