United States v. Church , 194 F. App'x 161 ( 2006 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4735
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
GARY ADRIAN CHURCH,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. Frank W. Bullock, Jr.,
District Judge. (CR-04-62)
Submitted: June 28, 2006 Decided: August 14, 2006
Before KING and SHEDD, Circuit Judges, and HAMILTON, Senior Circuit
Judge.
Affirmed in part, vacated in part, and remanded by unpublished per
curiam opinion.
Louis C. Allen, III, Federal Public Defender, Gregory Davis,
Assistant Federal Public Defender, Greensboro, North Carolina, for
Appellant. Anna Mills Wagoner, United States Attorney, L. Patrick
Auld, Assistant United States Attorney, Greensboro, North Carolina,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Gary Adrian Church pled guilty to bank robbery, 18 U.S.C.
§ 2113(a) (2000), and was sentenced as a career offender to a term
of 156 months imprisonment. U.S. Sentencing Guidelines Manual
§ 4B1.1 (2003). Church’s attorney initially filed a brief pursuant
to Anders v. California, 386 U.S. 738 (1967), appealing “from the
judgment, including the sentence,” Appellant’s Br. at 1, and
raising three potential sentencing errors under Blakely v.
Washington, 542 U.S. 296 (2004): (1) the career offender sentence,
(2) the calculation of Church’s criminal history, and (3) the
calculation of the offense level. However, counsel asserted that,
in his view, there were no meritorious issues for appeal. Church
filed a pro se supplemental brief, also alleging Blakely error.
In a supplemental brief filed after the Supreme Court
decided United States v. Booker, 543 U.S. 220 (2005), Church argues
that the district court’s determination that he was a career
offender violated the Sixth Amendment and that the district court
also erred by applying the guidelines as mandatory. Church
maintains that he preserved the issue of the mandatory application
of the guidelines by making a Blakely objection to his sentence
enhancements and by moving for a downward departure. He further
contends that he was prejudiced by the court’s mandatory
application of the guidelines because the court’s comments
indicated that it likely would have imposed a lower sentence had it
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not been required to follow the guidelines. As explained below, we
affirm Church’s conviction, but we vacate his sentence and remand
for resentencing consistent with Booker.
Church robbed a bank in Yadkinville, North Carolina, of
$1940 on January 6, 2004, and led police on a high-speed chase on
the highway and through residential areas. Church managed to evade
capture, but he was arrested a few days later. Because Church had
prior convictions for bank robbery, breaking and entering, and
common law robbery, the court determined that Church qualified for
sentencing as a career offender under USSG § 4B1.1. His guideline
range was 151-188 months.
The district court overruled Church’s Blakely objection
to the career offender designation, then declined to depart
downward for diminished capacity based on sexual abuse Church
suffered as a child. The court noted that the case was not outside
the heartland, but added, “I don’t say that I’m not sympathetic.
And on a clean slate, would impose somewhat of a different
sentence.” The court opined that a departure was unlikely to be
affirmed. Favorably impressed by Church’s allocution, the court
indicated that it would impose a sentence that was “considerably
less” than it would usually impose for a defendant with such a long
criminal record. The court imposed a sentence of 156 months
imprisonment. The court commented that the sentence was “about
three years less than I would ordinarily give you or in that
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neighborhood. It’s still a sufficient time, and I think it’s fair
to you, fair to the government, and fair to the public.”
First, Church’s Sixth Amendment claim is foreclosed by
United States v. Collins, 412 F.3d 515, 521-23 (4th Cir. 2005)
(applying Shepard v. United States, 544 U.S. 13 (2005)). Church
did not dispute that he satisfied the requirements for career
offender status; moreover, the court could determine from the
judicial record of Church’s prior robbery convictions that each
clearly qualified as a crime of violence. See USSG § 4B1.2(a) &
comment. (n.1) (defining “[c]rime of violence” to include robbery).
We conclude that no Sixth Amendment violation occurred.
However, the sentencing court erred under Booker in
treating the guidelines as mandatory. United States v. White, 405
F.3d 208, 215 (4th Cir.), cert. denied, 126 S. Ct. 668 (2005).
Because Church objected at sentencing under Blakely to being
sentenced as a career offender, we review this claim de novo.
United States v. Rodriguez, 433 F.3d 411, 415 (4th Cir. 2006). We
conclude that the court’s comments raise a question as to whether
it would have imposed a lesser sentence under an advisory
guidelines system. Therefore, the government has not shown that
the mandatory application of the guidelines was harmless error.
Pursuant to Anders, this court has reviewed the record
for other reversible error and found none. We therefore affirm
Church’s conviction, but we vacate his sentence and remand the case
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for resentencing consistent with Booker.* Although the sentencing
guidelines are no longer mandatory, Booker makes clear that a
sentencing court must still “consult [the] Guidelines and take them
into account when sentencing.” 543 U.S. at 264. On remand, the
district court should first determine the appropriate sentencing
range under the guidelines, making all factual findings appropriate
for that determination. United States v. Hughes, 401 F.3d 540, 546
(4th Cir. 2005). The court should consider this sentencing range
along with the other factors described in 18 U.S.C.A. § 3553(a)
(West 2000 & Supp. 2006), and then impose a sentence. Id. If that
sentence falls outside the guidelines range, the court should
explain its reasons for imposing a non-guidelines sentence as
required by 18 U.S.C.A. § 3553(c)(2). Id. The sentence must be
“within the statutorily prescribed range and . . . reasonable.”
Id.This court requires that counsel inform his client, in
writing, of his right to petition the Supreme Court of the United
States for further review. If the client requests that a petition
be filed, but counsel believes that such a petition would be
frivolous, then counsel may move this court for leave to withdraw
*
Just as we noted in United States v. Hughes, “[w]e of course
offer no criticism of the district court judge, who followed the
law and procedure in effect at the time” of Church’s sentencing.
Hughes, 401 F.3d 540, 545 n.4 (4th Cir. 2005).
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from representation. Counsel’s motion must state that a copy
thereof was served on the client.
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 IN PART,
VACATED IN PART,
AND REMANDED
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