United States v. Daniels , 132 F. App'x 440 ( 2005 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4738
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ROBERT EARL DANIELS, JR.,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Charleston. David C. Norton, District Judge.
(CR-03-731)
Submitted: April 22, 2005 Decided: May 24, 2005
Before WILKINSON, KING, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
G. Wells Dickson, Jr., Charleston, South Carolina, for Appellant.
J. Strom Thurmond, Jr., United States Attorney, Alston C. Badger,
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Unpublished opinions are not binding precedent in this circuit.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:
Robert Earl Daniels, Jr., pled guilty to conspiracy to
possess with intent to distribute more than 50 grams of crack
cocaine, 21 U.S.C. § 846 (2000) (Count One); possession of more
than 5 grams of crack with intent to distribute, 21 U.S.C.
§ 841(a)(1) (2000) (Count Four); and possession of a firearm by a
convicted felon, 18 U.S.C. § 922(g)(1) (2000) (Count Eight). The
district court imposed a guideline sentence of 210 months for the
drug offenses and a concurrent 120-month sentence for the firearm
offense. The court also imposed an identical alternative sentence
under 18 U.S.C.A. § 3553 (West 2000 & Supp. 2004), treating the
guidelines as advisory only, pursuant to this court’s
recommendation in United States v. Hammoud, 378 F.3d 426 (4th Cir.)
(order), opinion issued by 381 F.3d 316 (4th Cir. 2004) (en banc),
vacated, 125 S. Ct. 1051 (2005).
Daniels appeals his sentence, contending that the
judicially enhanced guideline sentence was imposed in violation of
the Sixth Amendment under Blakely v. Washington, 124 S. Ct. 2531(2004). He has also moved to suspend briefing, vacate the
sentence, and remand his case for resentencing in light of the
Supreme Court’s decision in United States v. Booker, 125 S. Ct. 738(2005), and this court’s decision in United States v. Hughes, 401
F.3d 540 (4th Cir. 2005), on the ground that the alternative
sentence was imposed without the benefit of Booker and Hughes. We
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conclude that, because the alternative discretionary sentence was
identical to the sentence imposed under the federal sentencing
guidelines as they existed at that time, any error in the
imposition of the sentence was harmless. See Booker, 125 S. Ct. at
769. Therefore, we deny the motion to remand for resentencing, and
we affirm the sentence. Because this case was fully briefed when
Daniels’ motion was filed, we deny his request to suspend briefing
as moot.
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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