United States v. Thompson ( 2006 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4080
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ROMMIE DALE THOMPSON,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. James A. Beaty, Jr.,
District Judge. (CR-04-252)
Submitted: January 17, 2006 Decided: March 8, 2006
Before WILLIAMS, MOTZ, and KING, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
Louis C. Allen, III, Federal Public Defender, William C. Ingram,
First Assistant Federal Public Defender, OFFICE OF THE FEDERAL
PUBLIC DEFENDER, Greensboro, North Carolina, for Appellant. Anna
Mills Wagoner, United States Attorney, Kearns Davis, Assistant
United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Rommie Dale Thompson seeks relief from the 180-month sentence
imposed by the district court after he pled guilty to bank robbery,
18 U.S.C.A. § 2113(a) (West 2000). In calculating his sentencing
range, the district court found, inter alia, that Thompson was a
career offender under U.S. Sentencing Guidelines Manual § 4B1.1
(2004). Thompson’s applicable Guideline range was 151 to 188
months of imprisonment, and treating the Guidelines as mandatory,
the district court sentenced Thompson to a 180-month term of
imprisonment. Thompson does not challenge his conviction.
At his sentencing hearing, Thompson objected to the procedures
utilized by the court, arguing that they violated the Sixth
Amendment principles outlined in Blakely v. Washington, 542 U.S.
296 (2000). Citing United States v. Booker, 125 S. Ct. 738(2005), on appeal, Thompson asserts that his sentence is
unconstitutional. Thompson asserts that his sentence violates
Booker because the district court (1) sentenced him under a
mandatory sentencing guidelines scheme and (2) violated his Sixth
Amendment right by sentencing him as a career offender. For the
reasons set forth below, we vacate and remand for resentencing.1
1
“We of course offer no criticism of the district judge, who
followed the law and procedure in effect at the time of
[Appellant’s] sentencing.” United States v. Hughes, 401 F.3d 540,
545 n.4 (4th Cir. 2005).
2
In United States v. White, 405 F.3d 208 (4th Cir. 2005), we
held that treating the Guidelines as mandatory constitutes error
under Booker. See id. at 216-17. Moreover, because Thompson’s
Blakely objection sufficed to preserve his statutory Booker claim,
we must review his claim of statutory Booker error for harmless
error. See United States v. Rodriguez, __ F.3d __, No. 04-4609,
slip op. at 10 (4th Cir. Jan. 3, 2006) (holding that because the
appellant had “properly preserved his claim of statutory Booker
error by raising a timely Blakely objection at sentencing,” the
Court was “obliged to review his preserved claim of statutory
Booker error for harmless error”). Accordingly, we must reverse
unless the Government demonstrates that the error is harmless. See
Fed. R. Crim. P. 52(a) (“Any error . . . that does not affect
substantial rights must be disregarded.”). Our review of the
record as a whole leads us to conclude that the Government has not
met its burden of demonstrating that the error in sentencing
Thompson under a mandatory Guidelines scheme does not affect his
substantial rights. See Rodriguez, __ F.3d __, No. 04-4609, slip
op. at 13 (noting that the sentencing court’s silence must be
interpreted in the appellant’s favor when the burden rests on the
Government). Thus, the error is not harmless.
3
Accordingly, we vacate Thompson’s sentence and remand for
further proceedings.2 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.
VACATED AND REMANDED
2
Because we vacate the sentence for statutory Booker error, we
need not decide whether the district court committed Sixth
Amendment error. We note, however, that to the extent that
Thompson contends that sentencing him as a career offender based on
his undisputed prior convictions is unconstitutional, that
contention is foreclosed by this Court’s opinion in United States
v. Collins, 412 F.3d 515 (4th Cir. 2005), which held that an
application of the career offender enhancement did not violate
Booker where facts were undisputed, thereby making it unnecessary
to engage in further factfinding about a prior conviction. Id. at
523.
4