United States v. Evans ( 2007 )

ON REHEARING
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4843
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JEFFREY STEVEN EVANS,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Robert J. Conrad, Jr.,
Chief District Judge. (3:04-cr-00186-2)
Submitted: January 25, 2007 Decided: March 14, 2007
Before WIDENER and MICHAEL, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
R. Deke Falls, BARNETT & FALLS, Charlotte, North Carolina, for
Appellant. Gretchen C. F. Shappert, United States Attorney, Thomas
Cullen, Assistant United States Attorney, Charlotte, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Jeffrey Steven Evans pled guilty to conspiracy to possess
marijuana with intent to distribute, 21 U.S.C.A. §§ 841, 846 (West
1999 & Supp. 2006) (Count One), and possession of a firearm by a
convicted felon, 18 U.S.C. § 922(g)(1) (2000) (Count Four), and was
sentenced to a term of seventy-eight months imprisonment. Evans
appeals his sentence, alleging that his Sixth Amendment rights were
violated by the district court’s factual finding that he possessed
a firearm during the drug offense and application of a two-level
enhancement.* U.S. Sentencing Guidelines Manual § 2D1.1(b)(1)
(2005). We affirm.
In the district court, Evans principally contested the
weapon enhancement on factual grounds, but also challenged it under
Blakely v. Washington, 542 U.S. 296 (2004). Following the Supreme
Court’s decision in United States v. Booker, 543 U.S. 220 (2005),
the sentencing court is required to calculate the appropriate
advisory guideline range after making any necessary findings of
fact, and consider the range in conjunction with all relevant
factors under the guidelines and 18 U.S.C.A. § 3553(a) (West 2000
& Supp. 2006), before imposing a sentence. United States v.
*
We previously affirmed Evans’ sentence using a plain error
standard of review. Fed. R. Crim. P. 52(b). Evans filed a
petition for rehearing and rehearing en banc, pointing out that,
after sentence was pronounced, counsel informed the court that his
client wished to challenge the enhancement under Blakely v.
Washington, 542 U.S. 296 (2005). We therefore granted panel
rehearing.
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Hughes, 401 F.3d 540, 546-47 (4th Cir. 2005). The district court
followed this procedure. Because Evans was sentenced under an
advisory guideline scheme, no Sixth Amendment error occurred.
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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