United States v. Fitch ( 2006 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-5160
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
RONALD FITCH,
Defendant - Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Charleston. David A. Faber, Chief
District Judge. (CR-04-74)
Submitted: March 10, 2006 Decided: April 5, 2006
Before LUTTIG and TRAXLER, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Dennis H. Curry, Spencer, West Virginia, for Appellant. Charles T.
Miller, Acting United States Attorney, Monica L. Dillon, Assistant
United States Attorney, Charleston, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Ronald Fitch pled guilty to distribution of cocaine base,
in violation of 21 U.S.C. § 841(a)(1) (2000). The district court
sentenced Fitch, under the formerly mandatory sentencing
guidelines, to seventy-eight months’ imprisonment. Fitch
challenged his sentence on appeal, arguing that his offense level
was calculated, in part, based on judicial fact-finding in
violation of United States v. Booker, 543 U.S. 220 (2005). We
agreed, vacating his sentence because it was greater than that
authorized by the facts he admitted in his guilty plea. United
States v. Fitch, No. 04-4828 (4th Cir. July 20, 2005)
(unpublished). Thus, we remanded his case to the district court
for resentencing in accordance with Booker.
At his resentencing hearing, Fitch asserted that the
district court was obligated to find beyond a reasonable doubt all
facts relevant to the imposition of his sentence. The district
court rejected this argument and, based on Fitch’s good behavior
and the measures undertaken to treat his drug addiction, imposed a
sentence of seventy-five months’ imprisonment. Fitch again
appeals, contending the district court erroneously made factual
findings using a preponderance of the evidence standard.
After the Supreme Court’s decision in Booker, a
sentencing court is no longer bound by the range prescribed by the
sentencing guidelines. See United States v. Hughes, 401 F.3d 540,
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546 (4th Cir. 2005). However, in determining a sentence
post-Booker, sentencing courts are still required to calculate and
consider the guideline range prescribed thereby as well as the
factors set forth in 18 U.S.C.A. § 3553(a) (West 2000 & 2005
Supp.). Id. As stated in Hughes, we will affirm a post-Booker
sentence if it is both reasonable and within the statutorily
prescribed range. Id. at 546-47; see also United States v. Green,
436 F.3d 449, 455-56 (4th Cir. 2006).
“Consistent with the remedial scheme set forth in Booker,
a district court shall first calculate (after making the
appropriate findings of fact) the range prescribed by the
guidelines.” Hughes, 401 F.3d at 546. “The remedial portion of
Booker held that decisions about sentencing factors will continue
to be made by judges, on the preponderance of the evidence, an
approach that comports with the [S]ixth [A]mendment so long as the
guideline system has some flexibility in application.” United
States v. Morris, 429 F.3d 65, 72 (4th Cir. 2005); see also United
States v. Dalton, 409 F.3d 1247, 1252 (10th Cir. 2005); United
States v. Mares, 402 F.3d 511, 519 (5th Cir.), cert. denied, 126 S.
Ct. 43 (2005).
In light of these principles, we find no Booker error
committed by the district court in its resentencing of Fitch.
Furthermore, we reject Fitch’s contention that his sentence based
on the court’s factual findings by a preponderance of the evidence
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violated the Fifth Amendment. Accordingly, we affirm Fitch’s
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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