United States v. Wilson , 161 F. App'x 238 ( 2005 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-5083
UNITED STATES OF AMERICA,
Plaintiff- Appellee,
versus
JAMES EDWARD WILSON,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Florence. Terry L. Wooten, District Judge.
(CR-03-1058)
Submitted: October 7, 2005 Decided: December 29, 2005
Before NIEMEYER, LUTTIG, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Michael A. Meetze, Assistant Federal Public Defender, Florence,
South Carolina, for Appellant. Jonathan S. Gasser, Acting United
States Attorney, Rose Mary Parham, Assistant United States
Attorney, Florence, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
James Edward Wilson appeals from his 192 month prison
sentence for possession of a firearm by a convicted felon in
violation of 18 U.S.C. § 922(g)(1) (2000).* Finding no reversible
error, we affirm.
Wilson contends the district court improperly enhanced
his sentence by using his prior convictions to conclude he was an
armed career criminal under U.S. Sentencing Guidelines Manual
§ 4B1.4(a) (2004). Because Wilson preserved his Sixth Amendment
claim by objecting to his armed career criminal classification
based upon Blakely v. Washington, 124 S. Ct. 2531 (2004), this
court’s review is de novo. See United States v. Mackins, 315 F.3d
399, 405 (4th Cir. 2003). This court has ruled that the nature and
occasion of prior offenses are facts inherent in the convictions
and that the government does not have to allege prior convictions
in the indictment or submit proof of them to a jury as a
prerequisite to applying the armed career criminal enhancement.
United States v. Thompson, 421 F.3d 278, 285-87 (4th Cir. 2005).
Thus, the district court did not err when it considered Wilson’s
prior convictions in calculating his sentence.
Wilson also asserts that the district court improperly
applied an offense level of thirty-four under USSG § 4B1.4(b)(3)(A)
using the judicially found fact of possession of a firearm instead
*
Wilson does not challenge his conviction.
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of an offense level of thirty-three under USSG § 4B1.4(b)(3)(B).
An offense level of thirty-three with the acceptance of
responsibility three level reduction results in a total offense
level of thirty for a guideline range of 168-210 months. Wilson’s
192 month sentence falls within that range. If the acceptance of
responsibility reduction is excluded from this determination, as in
United States v. Evans, 416 F.3d 298 (4th Cir. 2005), Wilson’s
requested offense level of thirty-three would result in a
sentencing range of 235-298 months, far higher than his actual
sentence. Under either calculation, the district court did not
commit any reversible Sixth Amendment error when it applied the
judicially found fact that Wilson had possessed a firearm.
Wilson avers that the district court’s treatment of the
sentencing guidelines as mandatory requires resentencing. As
Wilson preserved this claim, we review the error under the harmless
error analysis. See United States v. Booker, 125 S. Ct. 738, 769
(2005). The Government bears the burden in harmless error review
of showing beyond a reasonable doubt that the error did not affect
the defendant’s substantial rights. United States v. Mackins, 315
F.3d 399, 405 (4th Cir. 2003). Affecting substantial rights means
that the error affected the outcome of the proceedings. United
States v. Stokes, 261 F.3d 496, 499 (4th Cir. 2001). An error in
sentencing may be disregarded if the reviewing court is certain
that any such error “did not affect the district court’s selection
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of the sentence imposed.” Williams v. United States, 503 U.S. 193,
203 (1992).
The Tenth Circuit framed the harmless error analysis by
asking whether the Booker error affected the sentence the defendant
would receive under the post-Booker framework of consulting
advisory guidelines, the 18 U.S.C. § 3553(a) (2000) factors, and
review for unreasonableness. United States v. Labastida-Segura,
396 F.3d 1140, 1142 (10th Cir. 2005). Other circuits, in cases
where the district court imposed an alternative sentence, have
found remand for resentencing appropriate unless it is clear that
the lower court adequately took into account § 3553(a) in imposing
sentence. See United States v. Serranto-Dominguez, 406 F.3d 1221,
1224 (10th Cir. 2005). In this case, the district court did impose
an alternate sentence in accordance with United States v. Hammoud,
381 F.3d 316, 353-54 (4th Cir. 2004) (en banc), judgment vacated,
125 S. Ct. 1051 (2005), identical to Wilson’s actual sentence.
When the district court imposed its alternate sentence, it stated
that the alternate sentence was being imposed pursuant to §
3553(a). The Government thus satisfied its burden of demonstrating
that the district court’s error in sentencing Wilson under the
mandatory guidelines was harmless error that did not affect
Wilson’s substantial rights.
Accordingly, we affirm Wilson’s sentence. We dispense
with oral argument because the facts and legal contentions are
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adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED
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