United States v. Stokes ( 2006 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 03-4720
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
CECIL LAMONT STOKES,
Defendant - Appellant.
On Remand from the Supreme Court of the United States.
(S. Ct. No. 04-6554)
Submitted: February 10, 2006 Decided: May 4, 2006
Before WIDENER, WILKINSON, and MICHAEL, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Brian Michael Aus, Durham, North Carolina, for Appellant. Angela
Hewlett Miller, Lawrence Patrick Auld, 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Unpublished opinions are not binding precedent in this circuit.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:
This case is before the court on remand from the United
States Supreme Court. We previously affirmed Cecil Lamont Stokes’
conviction and sentence. United States v. Stokes, No. 03-4720 (4th
Cir. Mar. 17, 2004) (unpublished). The Supreme Court vacated our
decision and remanded Stokes’ case to us for further consideration
in light of United States v. Booker, 543 U.S. 220, 125 S. Ct. 738(2005).
In Stokes’ supplemental brief, filed at this court’s
direction after the Supreme Court’s remand, he contends that he is
entitled to resentencing in light of Booker because his sentence
was enhanced based on facts not found by the jury and the district
court considered the guidelines as mandatory. Specifically, he
argues that his offense level was increased based on judicial fact-
finding with respect to the two-level enhancement for abuse of a
position of public trust.
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
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. Because Stokes did not
raise a Sixth Amendment challenge or object to the mandatory
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application of the guidelines in the district court, review is for
plain error. Hughes, 401 F.3d at 547. To demonstrate plain error,
an appellant must establish that an error occurred, that it was
plain, and that it affected his substantial rights. United
States v. Olano, 507 U.S. 725, 731-32 (1993); Hughes, 401 F.3d at
547-48. If an appellant meets these requirements, the court’s
“discretion is appropriately exercised only when failure to do so
would result in a miscarriage of justice, such as when the
defendant is actually innocent or the error seriously affects the
fairness, integrity or public reputation of judicial proceedings.”
Hughes, 401 F.3d at 555 (internal quotation marks and citation
omitted). While the mandatory application of the guidelines
constitutes plain error, United States v. White, 405 F.3d 208, 217
(4th Cir.), cert. denied, 126 S. Ct. 668 (2005), a defendant who
seeks resentencing 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).
Removing the abuse of a position of public trust enhancement, which
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had been added, reduces Stokes’ pre-acceptance-of-responsibility
offense level by two levels from 26 to 24, which combined with
criminal history category IV would make the guideline range 77-96
months for the interference with commerce count. Because Stokes’
sentence was within that range, he cannot show plain error.
Moreover, nothing in the sentencing transcript or elsewhere in the
record suggests that the district court would have given Stokes a
lower sentence if the guidelines were not mandatory. Therefore,
Stokes has not established plain error that warrants resentencing
under White, 405 F.3d at 223.
Accordingly, we affirm Stokes’ sentence after our
reconsideration in light of Booker. In addition, we reinstate our
March 17, 2004 opinion affirming his conviction. 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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