United States v. Jones , 163 F. App'x 218 ( 2006 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4186
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
LUTHER EL-THOMAS JONES,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. James A Beaty, Jr.,
District Judge. (CR-04-275)
Submitted: November 9, 2005 Decided: January 24, 2006
Before WILKINSON, KING, and GREGORY, Circuit Judges.
Affirmed in part, vacated in part, and remanded by unpublished per
curiam opinion.
Duane K. Bryant, LAW OFFICES OF DUANE K. BRYANT, High Point, North
Carolina, for Appellant. Kearns Davis, 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Unpublished opinions are not binding precedent in this circuit.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:
Luther El-Thomas Jones pled guilty to theft of firearms
from a licensed firearms dealer, in violation of 18 U.S.C. § 922(u)
(2000). He was sentenced to 13 months of imprisonment, followed by
three years of supervised release. He appeals his sentence.
Jones first argues on appeal that the district court
erred in applying a four-level enhancement to his base offense
level because the number of firearms stolen was more than eight but
less than twenty-four, pursuant to U.S. Sentencing Guidelines
Manual (USSG) § 2K2.1(b)(1)(B) (2004), and a two-level enhancement
based upon his role in the offense for using or attempting to use
a person less than 18 years of age in the offense, USSG § 3B1.4.
Because Jones preserved these issues by objecting at
sentencing based upon Blakely v. Washington, 542 U.S. 296 (2004),
our review is de novo. See United States v. Mackins, 315 F.3d 399,
405 (4th Cir. 2003) (“If a defendant has made a timely 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, “we must reverse unless we find
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
1
Apprendi v. New Jersey, 530 U.S. 466 (2000).
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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 United States v. 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. 738, 746, 750 (2005) (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. 2005) (requiring sentencing courts to
impose a sentence within the applicable guideline range), and 18
U.S.C.A. § 3742(e) (West 2000 & Supp. 2005) (setting forth
appellate standards of review for guideline issues), thereby making
the guidelines advisory. See United States v. Hughes, 401 F.3d
540, 546 (4th Cir. 2005) (citing Booker, 125 S. Ct. at 756-67
(Breyer, J., opinion of the Court)).
After Booker, courts must calculate the appropriate
guideline range, consider the range in conjunction with other
relevant factors under the guidelines and 18 U.S.C.A. § 3553(a),
and impose a sentence. If a court imposes a sentence outside the
guideline range, the district 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
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of whether the sentence violates the Sixth Amendment. Id. at 547
(citing Booker, 125 S. Ct. at 769 (Breyer, J., opinion of the
Court)).
Without the enhancements and without the reduction Jones
received for acceptance of responsibility,2 Jones’ offense level
would have been twelve and, thus, his guideline range would have
been ten to sixteen months of imprisonment. USSG Ch. 5, Pt. A
(Sentencing Table). Because the thirteen month sentence Jones
received is within that guideline range, we find no Sixth Amendment
error. Evans, 416 F.3d at 300-01.
Jones also argues the district court erred in applying
the federal sentencing guidelines as mandatory in violation of
Booker. Jones set forth a general objection in the district court
based on Blakely. The issue of whether a general Blakely objection
raised at sentencing preserves for appellate review a claim that
the district court erred in treating the guidelines as mandatory
has not been decided. However, even assuming, without deciding,
that the plain error standard--the more demanding standard for
Jones--applies, we find Jones’ sentence under the then-mandatory
guidelines is in error. In White, we recognized that a sentence
that does not violate the Sixth Amendment may involve cognizable
plain error when it appears the district court would have imposed
2
See United States v. Evans, 416 F.3d 298, 300 n.4 (4th Cir.
2005).
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a lesser sentence if it had treated the guidelines as advisory.
405 F.3d at 223. Here, the district court announced a lower
alternate sentence of five months that it might have imposed on
Jones had the court not been under the now-erroneous understanding
that application of the guidelines was mandatory.3 We therefore
vacate Jones’ sentence and remand the case for resentencing
consistent with Booker.
Although the sentencing guidelines are no longer
mandatory, Booker makes clear that a sentencing court must still
“consult [the] Guidelines and take them into account when
sentencing.” 125 S. Ct. at 767. On remand, the district court
should first determine the appropriate sentencing range under the
guidelines, making all factual findings appropriate for that
determination. See Hughes, 401 F.3d at 546 (applying Booker on
plain error review). The court should consider this sentencing
range along with the other factors described in 18 U.S.C. § 3553(a)
(2000), and then impose a sentence. Id. If that sentence falls
outside the guidelines range, the court should explain its reasons
for the departure as required by 18 U.S.C. § 3553(c)(2) (2000).
3
Just as we noted in Hughes, 401 F.3d at 545 n.4, “[w]e of
course offer no criticism of the district judge, who followed the
law and procedure in effect at the time” of Jones’ 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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Id. The sentence must be “within the statutorily prescribed range
and . . . reasonable.” Id. at 546-47.
Accordingly, we affirm the conviction, but vacate Jones’
sentence and remand for resentencing in accordance with Booker. 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
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