United States v. Mobley , 194 F. App'x 184 ( 2006 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4215
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
THURMAN MOBLEY,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Richard L. Voorhees,
District Judge. (CR-99-165-10-V)
Submitted: March 31, 2006 Decided: August 16, 2006
Before MICHAEL, GREGORY, and SHEDD, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
Joel Merritt Wagoner, LAW OFFICE OF WILLIAM T. PEREGOY, Wilmington,
North Carolina, for Appellant. Gretchen C. F. Shappert, United
States Attorney, Charlotte, North Carolina; Amy E. Ray, Assistant
United States Attorney, Asheville, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
After a jury trial, Thurman Mobley was convicted of
conspiracy to possess with intent to distribute and to distribute
crack cocaine, and conspiracy to use, carry, and possess firearms
during and in relation to a drug trafficking offense. On a special
verdict form, the jury found that the drug conspiracy involved “at
least 5 grams but less than 50 grams of cocaine base.” The
district court found that Mobley was responsible for between 35 and
50 grams of cocaine base and sentenced him to 170 months in prison.
Mobley appeals his sentence, asserting that it violates the Sixth
Amendment. We agree and therefore vacate his sentence and remand
for resentencing.
Citing United States v. Booker, 543 U.S. 220 (2005),
Mobley asserts that the district court’s finding of thirty-five to
fifty grams enhanced his sentence beyond the jury’s finding of five
to fifty grams, in violation of the Sixth Amendment. Because
Mobley did not raise this issue in the district court, our review
is for plain error. See United States v. Hughes, 401 F.3d 540,
547-48 (4th Cir. 2005). To demonstrate plain error, a defendant
must establish that an error occurred, that the error was plain,
and that it affected his substantial rights. Id. at 547-48. If
the defendant establishes these requirements, this court may
exercise its discretion to notice the error “only when failure to
do so would result in a miscarriage of justice, such as when the
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defendant is actually innocent or the error seriously affects the
fairness, integrity or public reputation of judicial proceedings.
Id. at 555 (internal quotation marks and citation omitted).
In Booker, the Supreme Court held that the mandatory
manner in which the federal sentencing guidelines required courts
to impose sentencing enhancements based on facts found by the court
by a preponderance of the evidence violated the Sixth Amendment.
Booker, 543 U.S. at 233-34. The Court remedied the constitutional
violation by making the Guidelines advisory through the removal of
two statutory provisions that had rendered them mandatory. Hughes,
401 F.3d at 546-47.
Here, the district court sentenced Mobley under the
mandatory federal sentencing guidelines and based on drug
quantities found by a preponderance of the evidence. The jury
found that Mobley was responsible for at least five, but less than
fifty grams of crack. This finding encompassed three different
offense levels under the sentencing guidelines, each providing for
different sentencing ranges. The district court found, by a
preponderance of the evidence, that Mobley was responsible for at
least thirty-five but less than fifty grams of crack. This factual
finding placed Mobley in the highest of the three ranges possible
under the jury’s verdict. Because the district court’s findings
increased Mobley’s sentence beyond that which may have been
authorized by the jury’s findings, we conclude that Mobley’s
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sentence was the result of plain error.1 See Booker, 543 U.S. at
233-34; see also United States v. Rhynes, 196 F.3d 207, 238 (4th
Cir. 1999), vacated in part on other grounds on reh’g en banc, 218
F.3d 310 (4th Cir. 2000) (holding that when there is a general
verdict in a multiple-drug conspiracy, the defendant may be
sentenced only up to the maximum for the least-punished drug
offense on which the conspiracy verdict might have been based).
Accordingly, although we affirm Mobley’s convictions, we
vacate his sentence and remand for resentencing consistent with
Booker and Hughes.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
1
Just as we noted in Hughes, “[w]e of course offer no
criticism of the district judge, who followed the law and procedure
in effect at the time” of Mobley’s sentencing. 401 F.3d at 545
n.4.
2
Although the 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. Hughes, 401 F.3d at 546. The
court should consider this sentencing range along with the other
factors described in 18 U.S.C.A. § 3553(a) (West 2000 & Supp.
2005), and then impose a sentence. Hughes, 401 F.3d at 546. If
that sentence falls outside the Guidelines range, the court should
explain its reasons for the departure as required by 18 U.S.C.A.
§ 3553(c)(2) (West 2000 & Supp. 2005). Hughes, 401 F.3d at 546.
The sentence must be “within the statutorily prescribed range
and . . . reasonable.” Id. at 547.
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