United States v. Mongold , 259 F. App'x 539 ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4411
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
DAWSON WILLIAM MONGOLD,
Defendant - Appellant.
Appeal from the United States District Court for the Northern
District of West Virginia, at Martinsburg. Irene M. Keeley, Chief
District Judge. (3:04-cr-00009-WCB)
Submitted: November 21, 2007 Decided: December 11, 2007
Before NIEMEYER, MICHAEL, and MOTZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Arthur H. Baker, III, LAW OFFICE OF ARTHUR H. BAKER, III,
Pittsburgh, Pennsylvania, for Appellant. Sharon L. Potter, United
States Attorney, Thomas O. Mucklow, Assistant United States
Attorney, Martinsburg, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Dawson William Mongold pled guilty pursuant to a plea
agreement to three counts of distribution of cocaine base, in
violation of 21 U.S.C.A. § 841(a)(1) (West 1999 & Supp. 2007). As
part of his plea, he stipulated he was responsible for at least 500
grams of cocaine base or crack cocaine. Mongold’s guidelines range
of imprisonment was based upon his stipulation and his acceptance
of responsibility. He was sentenced to 188 months’ imprisonment or
the low end of the then mandatory sentencing guidelines. Mongold’s
counsel did not file an appeal. Subsequently, Mongold filed a
motion under 28 U.S.C. § 2255 (2000), claiming counsel was
ineffective for not filing a notice of appeal. The district court
agreed with Mongold and granted his motion. The court held a
resentencing for the purpose of reentering the judgment so Mongold
can file a timely notice of appeal. At the hearing, the court
ordered the same sentence and declined to consider Mongold’s other
challenges to his original sentence or to consider sentencing
Mongold under the rules announced in United States v. Booker, 543
U.S. 220 (2005). On appeal, Mongold claims the court erred by not
having a de novo sentencing proceeding. Mongold further claims the
court erred by not sentencing him pursuant to the rules announced
in Booker. Finding no error, we affirm.
The form of relief awarded by the district court in a
successful § 2255 proceeding is reviewed for abuse of discretion.
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United States v. Hadden, 475 F.3d 652, 667 (4th Cir. 2007).
District courts are given a “broad and flexible power . . . to
fashion an appropriate remedy.” United States v. Hillary, 106 F.3d
1170, 1171 (4th Cir. 1997) (internal quotation marks omitted).
When a movant in a § 2255 proceeding is successful in his claim
that he received ineffective assistance of counsel because counsel
did not file a requested notice of appeal, “the ‘standard practice
among federal courts’ in this situation: vacatur of the sentence
and summary imposition of a new sentencing judgment identical in
all respects to the earlier one except for the date of entry.”
United States v. Torres-Otero, 232 F.3d 24, 29 (1st Cir. 2000)
(quoting Pratt v. United States, 129 F.3d 54, 62 (1st Cir. 1997)).
See also United States v. Shedrick, 493 F.3d 292, 303 (3d Cir.
2007) (the “usual course in cases of this nature: vacate and
remand for re-entry of the initial sentence so that there can be a
timely appeal.”); United States v. Snitz, 342 F.3d 1154, 1159 (10th
Cir. 2003) (directing “district court to vacate and reenter its
judgment of conviction and sentence to allow defendant to file a
timely appeal”); United States v. West, 240 F.3d 456, 459 (5th Cir.
2001) (“When leave to file an out-of-time appeal is granted, the
district court should reinstate the criminal judgment to trigger
the running of a new Rule 4(b) appeal period.”) (emphasis in
original); United States v. Prado, 204 F.3d 843, 845 (8th Cir.
2000). A defendant is not entitled to de novo resentencing when
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the “defendant has been unconstitutionally deprived of appellate
review due to ineffective assistance of counsel.” Prado, 204 F.3d
at 845. see also United States v. Phillips, 225 F.3d 1198, 1200-01
(11th Cir. 2000) (setting forth procedure for reimposing judgment
when right to appeal has been denied); cf. United States v. Peak,
992 F.2d 39, 42 (4th Cir. 1993) (in § 2255 appeal where criminal
defense attorney failed to file a notice of appeal though requested
to do so, court vacated and instructed district court “to vacate
Peak’s judgment of conviction and enter a new judgment from which
an appeal can be taken.”).
We find the district court did not abuse its discretion
by re-entering the judgment with the purpose of allowing Mongold to
file a timely notice of appeal without considering Mongold’s other
attacks on his sentence.
We further find Mongold’s sentence does not violate the
rules announced in Booker. In 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. at 746, 750 (Stevens, J., opinion of
the Court). This court has identified two types of Booker error:
a violation of the Sixth Amendment, and a failure to treat the
sentencing guidelines as advisory. United States v. Hughes, 401
F.3d 540, 552 (4th Cir. 2005). A Sixth Amendment error occurs when
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the district court imposes a sentence greater than the maximum
permitted based on facts found by a jury or admitted by the
defendant. Booker, 125 S. Ct. at 756. While the mandatory
application of the guidelines constitutes plain error, United
States v. White, 405 F.3d 208, 217 (4th Cir. 2005), a defendant who
seeks re-sentencing on this ground must show actual prejudice,
i.e., a “nonspeculative basis for concluding that the treatment of
the guidelines as mandatory ‘affect[ed] the district court’s
selection of the sentence imposed.’” Id. at 223 (quoting
Williams v. United States, 503 U.S. 193, 203 (1992)).
For purposes of determining Booker error, this court
considers the guideline range based on the facts the defendant
admitted before any adjustment for acceptance of responsibility.
United States v. Evans, 416 F.3d 298, 300 n.4 (4th Cir. 2005).
Mongold’s guidelines range of imprisonment was determined solely on
his agreement that he was responsible for at least 500 grams of
cocaine. Mongold’s unenhanced offense level, without consideration
for acceptance of responsibility, was thirty-six. With criminal
history category IV, the guideline range would have been 262 to 327
months’ imprisonment. Mongold’s sentence was lower than that range
as a result of him receiving credit for acceptance of
responsibility. Thus, Mongold cannot show error. Moreover,
nothing in the current record on appeal suggests the district court
would have given him a lower sentence if the guidelines were not
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mandatory. Therefore, Mongold has not established error that
warrants re-sentencing under White, 405 F.3d at 223.
Accordingly, we affirm the 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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