United States v. Booher , 201 F. App'x 139 ( 2006 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 03-4788
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JAMES PHILLIP BOOHER,
Defendant - Appellant.
On Remand from the Supreme Court of the United States.
(S. Ct. No. 04-5249)
______________
Submitted: July 26, 2006 Decided: September 25, 2006
Before MICHAEL, MOTZ, and GREGORY, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
Jay H. Steele, Lebanon, Virginia, for Appellant. John L. Brownlee,
United States Attorney, Jean B. Hudson, Assistant United States
Attorney, Charlottesville, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
James Phillip Booher pled guilty to possession of a
firearm and ammunition by a convicted felon, 18 U.S.C. § 922(g)(1)
(2000). The district court determined at sentencing that he
obstructed justice by suborning his girlfriend’s perjury before the
grand jury, U.S. Sentencing Guidelines Manual § 3C1.1 (2002), and
accordingly denied him an adjustment for acceptance of
responsibility. USSG § 3E1.1. Booher did not object to a two-
level enhancement recommended in the presentence report under USSG
§ 2K2.1(b)(4) for a stolen firearm. The district court imposed a
sentence of 100 months imprisonment. We affirmed the sentence.
United States v. Booher, 94 F. App’x 160 (4th Cir. 2004) (No. 03-
4788). The Supreme Court later granted Booher’s petition for
certiorari, vacated this court’s judgment in light of United
States v. Booker, 543 U.S. 220 (2005), and remanded the case for
further proceedings. For the reasons explained below, we vacate
the sentence and remand for resentencing.
On remand, Booher argues that the district court plainly
erred under Booker in making enhancements for a stolen gun and
obstruction of justice based on facts which he did not admit, but
were instead found by the court, thus violating his Sixth Amendment
rights. He also asserts that there is nothing in the record that
indicates the district court would impose the same sentence if his
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case were remanded for resentencing under an advisory sentencing
scheme.
Under Booker, 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, 543 U.S. at 245. Because Booher did not raise
a Sixth Amendment challenge or object to the mandatory application
of the guidelines in the district court, our review is for plain
error. United States v. Olano, 507 U.S. 725, 731-32 (1993); United
States v. Hughes, 401 F.3d 540, 547 (4th Cir. 2005). To
demonstrate plain error, an appellant must establish that an error
occurred, that it was plain, and that it affected his substantial
rights. 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.” Id. at 555 (internal
quotation marks and citation omitted).
Here, the district court found that Booher had obstructed
justice, a fact he contested, and increased the offense level from
20 to 22. In doing so, the district court erred by making a
factual finding that increased Booher’s sentence under a mandatory
guidelines scheme. Hughes, 401 F.3d at 547. The error was plain
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because Booker abrogated the previous law of this Circuit. Id. at
547-48.
Further, Booher’s failure to contest the recommended
enhancement for a stolen firearm (which increased the offense level
to 24) may not be treated as an admission that the firearm was
stolen. In United States v. Milam, 443 F.3d 382 (4th Cir. 2006),
we held that, for Booker purposes, a defendant’s failure to object
to the presentence report does not constitute an admission of facts
set forth in the report on which a sentence enhancement is based.
Moreover, the evidence that the gun was stolen was not
overwhelming. Cf. United States v. Smith, 441 F.3d 254, 272 (4th
Cir. 2006) (declining to notice Booker error where the jury, having
convicted the defendant of various drug offenses, would have found
the specific drug amounts charged in the indictment by relying on
the uncontroverted testimony proffered by several witnesses),
petition for cert. filed, July 10, 2006 (No. 06-5223). Although
Booher asserts that he is unaware of what facts were relied on to
reach the conclusion that the gun was stolen, the record discloses
that the probation officer recommended the enhancement based on
information from the FBI’s National Crime Information Center, which
showed that the gun had been stolen in Newport, Tennessee. We
conclude that this information does not constitute overwhelming
evidence that the gun was stolen.
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Without the two enhancements, Booher’s offense level
would have been 20 and his guideline range would have been 70-87
months. Booher’s 100-month sentence thus exceeds the maximum
authorized based on facts he admitted. We therefore exercise our
discretion to correct the error. Because resentencing is warranted
on this ground, we need not decide whether the mandatory
application of the guidelines alone constituted plain error that
would require resentencing. See United States v. White, 405 F.3d
208, 223 (4th Cir.), cert. denied, 126 S. Ct. 668 (2005) (holding
that a defendant who seeks resentencing on this ground must show
actual prejudice).
For the reasons discussed, we vacate the sentence imposed
by the district court and remand 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.” 125 S. Ct. at 767. 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
*
Just as we noted in 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 [Booher]’s sentencing.” Hughes,
401 F.3d at 545 n.4. See generally Johnson v. United States, 520
U.S. 461, 468 (1997) (stating that an error is “plain” if “the law
at the time of trial was settled and clearly contrary to the law at
the time of appeal”).
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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. 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
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