United States v. Ashworth ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-5292
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
STEVEN TODD ASHWORTH,
Defendant - Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Charleston. David A. Faber, District
Judge. (2:03-cr-00278)
Submitted: August 3, 2007 Decided: September 6, 2007
Before MICHAEL, MOTZ, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Donald L. Stennett, Charleston, West Virginia, for Appellant.
Charles T. Miller, United States Attorney, R. Gregory McVey,
Assistant United States Attorney, Huntington, West Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Steven Todd Ashworth appeals the sentence of 121 months
imprisonment he received after his case was remanded for
resentencing. United States v. Ashworth, 139 F. App’x 525, 527
(4th Cir.), cert. denied, 126 S. Ct. 765 (2005). Ashworth was
tried for conspiracy to manufacture methamphetamine and
distribution of methamphetamine, and acquitted of the conspiracy
charge. At the first sentencing, the district court excluded from
consideration all evidence of methamphetamine quantities apart from
the methamphetamine Ashworth was convicted of distributing, and
sentenced him to sixteen months imprisonment.
On remand, the district court calculated the advisory
guideline range based on all Ashworth’s relevant conduct that
included quantities of methamphetamine associated with the
conspiracy.* In this appeal, Ashworth does not challenge the
district court’s determination that his involvement in the
conspiracy was shown by a preponderance of the evidence. He argues
that the district court violated his Fifth and Sixth Amendment
rights by considering conduct of which he was acquitted in
determining his sentence.
*
Ashworth did not immediately appeal his sentence. However,
in December 2006, the district court granted Ashworth’s motion to
vacate pursuant to 28 U.S.C. § 2255 (2000), on the ground that he
had been denied an appeal. An amended judgment order was entered
on December 6, 2006. Ashworth noted a timely appeal from the
amended judgment.
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We review a sentence for reasonableness. United States
v. Booker, 543 U.S. 220 (2005); United States v. Hughes, 401 F.3d
540, 546-47 (4th Cir. 2005). After Booker, the sentencing court
must calculate the appropriate advisory guideline range by making
any necessary factual findings. United States v. Moreland, 437
F.3d 424, 432 (4th Cir.), cert. denied, 126 S. Ct. 2054 (2006).
The court should then consider the resulting advisory guideline
range in conjunction with the factors set out in 18 U.S.C.A.
§ 3553(a) (West 2000 & Supp. 2007), and determine an appropriate
sentence. United States v. Davenport, 445 F.3d 366, 370 (4th Cir.
2006). A sentence within a properly calculated advisory guideline
range is presumptively reasonable. United States v. Johnson, 445
F.3d 339, 341 (4th Cir. 2006); see Rita v. United States, 127 S.
Ct. 2456, 2462-68 (2007) (upholding presumption).
After Booker, the sentencing court continues to make
factual findings concerning sentencing factors by a preponderance
of the evidence. United States v. Morris, 429 F.3d 65, 72 (4th
Cir. 2005), cert. denied, 127 S. Ct. 121 (2006). Moreover,
long-standing authority has permitted the sentencing court to
consider any evidence at sentencing that “has sufficient indicia of
reliability,” see USSG § 6A1.3(a), including “conduct underlying
[an] acquitted charge, so long as that conduct has been proved by
a preponderance of the evidence.” United States v. Watts, 519 U.S.
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148, 156-57 (1997) (per curiam); United States v. Montgomery, 262
F.3d 233, 249 (4th Cir. 2001).
Ashworth argues that dicta in Booker casts doubt on the
continuing validity of Watts. He asserts that the Supreme Court ’s
decisions in Apprendi v. New Jersey, 530 U.S. 466 (2000), Blakely
v. Washington, 542 U.S. 296 (2005), and Booker seem to indicate
that facts that increase the sentence beyond the statutory maximum
permissible based solely on admitted facts or the jury’s verdict
must “satisfy a more stringent proof requirement” than
preponderance of the evidence. He acknowledges that the remedial
portion of Booker specifically rejected this approach, see Booker,
543 U.S. at 246, but argues that it does not remedy the Sixth
Amendment violation in his case because it is “counterintuitive”
and “illogical.” In Rita, however, the Supreme Court observed that
its “Sixth Amendment cases do not automatically forbid a sentencing
court to take account of factual matters not determined by a jury
and to increase the sentence in consequence.” 127 S. Ct. at 2465-
66.
Ashworth concedes that his position is contrary to our
previous unpublished opinion in his own case and case law from
other circuits. See United States v. Dorcely, 454 F.3d 366, 371
(D.C. Cir.) (“a sentencing court may base a sentence on acquitted
conduct without offending the defendant's Sixth Amendment right to
trial by jury”), cert. denied, 127 S. Ct. 691 (2006); United
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States v. Vaughn, 430 F.3d 518, 525-27 (2d Cir. 2005), cert.
denied, 547 U.S. 1060 (2006); United States v. Price, 418 F.3d 771,
787-88 (7th Cir. 2005); United States v. Magallanez, 408 F.3d 672,
684-85 (10th Cir.), cert. denied, 126 S. Ct. 468 (2005); United
States v. Duncan, 400 F.3d 1297, 1304-05 (11th Cir.), cert. denied,
126 S. Ct. 432 (2005). Moreover, the district court was not free
to disregard our directions. United States v. Bell, 5 F.3d 64, 66-
67 (4th Cir. 1993) (setting out mandate rule). We discern no error
in the sentence imposed by the district court on remand, and
conclude that it is reasonable.
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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