United States v. Shatley

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 05-4118
WAYNE SHATLEY,
Defendant-Appellant.

Appeal from the United States District Court
for the Western District of North Carolina, at Statesville.
Richard L. Voorhees, District Judge.
(CR-03-35-V)
Argued: March 15, 2006
Decided: May 16, 2006
Before WILKINSON, NIEMEYER, and DUNCAN, Circuit Judges.
Affirmed by published opinion. Judge Niemeyer wrote the opinion,
in which Judge Wilkinson and Judge Duncan joined.
COUNSEL
ARGUED: Herbert Victor Larson, Jr., New Orleans, Louisiana, for
Appellant. Matthew Theodore Martens, Assistant United States Attor-
ney, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte,
North Carolina, for Appellee. ON BRIEF: Gretchen C. F. Shappert,
United States Attorney, Charlotte, North Carolina, for Appellee.
2 UNITED STATES v. SHATLEY
OPINION
NIEMEYER, Circuit Judge:
Wayne Shatley was convicted of conspiracy to buy votes in a
North Carolina general election and of three counts of actually buying
votes, in violation of 18 U.S.C. § 371 and 42 U.S.C. § 1973i(c). The
district court sentenced Shatley under the Sentencing Guidelines,
increasing his offense level based on findings that Shatley organized
the conspiracy and obstructed justice during investigation of the con-
spiracy, and sentenced him to 33 months’ imprisonment. Following
our recommendation in United States v. Hammoud, 381 F.3d 316,
353-54 (4th Cir. 2004), the district court also announced that if the
Sentencing Guidelines were determined to be unconstitutional, it
would impose the same sentence as a "nonguideline sentence" under
18 U.S.C. § 3553(a).
Shatley contends that under United States v. Booker, 543 U.S. 220(2005), "the maximum sentence permitted by the facts of his convic-
tion" is 16 months’ imprisonment and that the alternative nonguide-
line sentence cannot make his illegal sentence legal.
Even though we agree with Shatley that the district court commit-
ted Booker error, we conclude that, in light of the district court’s
announcement of an alternative sentence, the error was harmless. We
therefore affirm.
I
During the election campaign before the November 2002 general
election in Caldwell County, North Carolina, Wayne Shatley and four
others engaged in a widespread scheme to buy votes for the Republi-
can candidate for sheriff, Gary Clark. Shatley organized and financed
the conspiracy, using $5,000 to $6,000 of his own money, to pay indi-
viduals for votes, usually $25 each. Shatley was charged in one count
with conspiracy to buy votes, in violation of 18 U.S.C. § 371, and in
three counts with actually buying votes on October 30, 2002, in viola-
tion of 42 U.S.C. § 1973(i)(c). A jury convicted him on all counts,
and the district judge sentenced him under the Sentencing Guidelines
UNITED STATES v. SHATLEY 3
to 33 months’ imprisonment, selecting the maximum sentence under
the applicable guideline range because of the "extensive disruption of
a government service" that Shatley caused.
During sentencing, the district court found that Shatley was an
organizer or leader of criminal activity that involved at least five par-
ticipants, justifying a four-level enhancement under U.S.S.G.
§ 3B1.1(a), and that he "willfully obstructed or impeded, or attempted
to obstruct or impede, the administration of justice during the course
of the investigation" of the offenses of conviction, justifying a two-
level enhancement under U.S.S.G. § 3C1.1. The government had pre-
sented evidence through the Presentence Report that Shatley induced
Anita Moore, one of his co-conspirators, to testify falsely before the
Board of Elections that Shatley was not involved in the vote-buying
scheme. Shatley had purchased Moore’s house during foreclosure
proceedings and told her whether she got her house back depended on
her testimony. In accordance with its findings, the court enhanced
Shatley’s offense level from level 12 to level 18. The findings made
by the district court increased the applicable sentencing range from a
range of 10 to 16 months’ imprisonment to a range of 27 to 33
months’ imprisonment. Shatley objected to the enhancements, based
on Blakely v. Washington, 542 U.S. 296 (2004), because the district
court, not the jury, made the factual findings that increased his
offense level.
After sentencing Shatley to 33 months’ imprisonment under the
Sentencing Guidelines, the court also announced an alternative nong-
uideline sentence:
Now, the court would impose a sentence under the Ham-
moud case and 18, U.S. Code, 3553 as a nonguideline sen-
tence which would be the same sentence and for the same
reasons, that is reflecting particularly deterrence and punish-
ment as well as rehabilitation.
Shatley has filed this appeal, contending that "based upon the
straightforward language of the Supreme Court in its opinion in
United States v. Booker, . . . the maximum sentence that the district
court could legally impose upon him was 16 months, as this was the
maximum sentence permitted by the facts reflected in the jury’s ver-
4 UNITED STATES v. SHATLEY
dict." Shatley requests that his 33-month sentence be vacated and that
the case be remanded for imposition of a sentence not greater than 16
months.
II
It is undisputed that the sentence imposed on Shatley under the
Sentencing Guidelines violated his Sixth Amendment right to a jury
trial, as articulated in United States v. Booker, 543 U.S. 220 (2005),
because the court imposed a sentence in excess of that authorized by
the facts found by the jury. The remaining issue is whether the Sixth
Amendment violation was prejudicial, given the fact that the district
court announced an alternative nonguideline sentence under 18
U.S.C. § 3553(a) identical to the Guidelines sentence.
Because Shatley objected to the sentencing enhancements under
Blakely, we review his sentence for harmless error, see United States
v. Rodriguez, 433 F.3d 411, 415-16 (4th Cir. 2006); Fed. R. Crim. P.
52(a), and the government bears the burden of proving that the error
was harmless, id. at 416. In this context, the government must prove
beyond a reasonable doubt that the court would have imposed the
same sentence in the absence of the constitutional error. See United
States v. Dominguez Benitez, 542 U.S. 74, 81 & n.7 (2004); see also
United States v. Hughes, 401 F.3d 540, 548 (4th Cir. 2005).
We conclude that because the district court announced an identical
alternative sentence, treating the Sentencing Guidelines as advisory
and considering the statutory sentencing factors in 18 U.S.C.
§ 3553(a), the government has met its burden of demonstrating that
the constitutional error in this case was harmless. See United States
v. Revels, No. 05-4142, ___ F.3d ___ (4th Cir. May 1, 2006).*
*In a string of unpublished opinions, we have previously held that
such error in imposing a sentence pursuant to the Guidelines is rendered
harmless by the imposition of an identical alternative sentence. See, e.g.,
United States v. Martinez, 127 Fed. Appx. 107 (4th Cir. 2005) (per
curiam); United States v. Washington, 124 Fed. Appx. 809 (4th Cir.
2005) (per curiam); United States v. Anderson, 124 Fed. Appx. 211 (4th
Cir. 2005) (per curiam). The other circuits that have considered the issue
have reached the same conclusion. See United States v. Dulcio, 441 F.3d
UNITED STATES v. SHATLEY 5
In United States v. Hammoud, 381 F.3d 316, 353-54 (4th Cir.
2004), we recommended that district courts announce, at the time of
sentencing, an alternative sentence determined pursuant to 18 U.S.C.
§ 3553(a) and treating the Sentencing Guidelines as advisory only.
The district court followed this recommendation, and its alternative
sentence was within the range recommended by the Sentencing
Guidelines and was based on the sentencing factors enunciated in 18
U.S.C. § 3553(a), "particularly deterrence and punishment as well as
rehabilitation."
Shatley does not contend that the district court’s factual findings
were clearly erroneous or that the district court incorrectly calculated
the sentencing guidelines range based on those findings. Rather, he
simply contends that this "‘alternative nonguideline sentence’ does
not change anything. If the sentence imposed upon [him] was illegal
because it exceeded the constitutional maximum for the offense of
conviction, imposing that same illegal sentence under a different
rationale does not make it legal." This argument, however, fails to
recognize that it is not the length of the sentence that offends the
Sixth Amendment, but rather the process used to determine its length.
If the jury had found the facts used to justify the 33-month sentence,
Shatley surely would have no complaint. Similarly, if the sentence
range was determined pursuant to facts found by the district court but
the Sentencing Guidelines were taken only as advisory, Shatley could
have no complaint as long as the sentence was entered under
§ 3553(a).
1269, 1277 (11th Cir. 2006); United States v. White, 439 F.3d 433, 436
(8th Cir. 2006); United States v. McBride, 434 F.3d 470, 473 (6th Cir.
2006); United States v. Simpson, 430 F.3d 1177, 1190-91 (D.C. Cir.
2005); United States v. Saldana, 427 F.3d 298, 314-15 (5th Cir. 2005);
United States v. Christopher, 415 F.3d 590, 593-94 (6th Cir. 2005);
United States v. Hill, 411 F.3d 425, 426 (3d Cir. 2005); United States v.
Robles, 408 F.3d 1324, 1327-28 (11th Cir. 2005) (per curiam); United
States v. Bassett, 406 F.3d 526, 527 (8th Cir. 2005) (per curiam); United
States v. Serrano-Dominguez, 406 F.3d 1221, 1224 (10th Cir. 2005); see
also United States v. Knows His Gun, 438 F.3d 913, 917-18 (9th Cir.
2006).
6 UNITED STATES v. SHATLEY
We have articulated the post-Booker procedure for sentencing in
United States v. Hughes, 401 F.3d 540 (4th Cir. 2005), United States
v. Green, 436 F.3d 449 (4th Cir. 2006), and United States v. More-
land, 437 F.3d 424 (4th Cir. 2006). The district court presciently fol-
lowed that procedure in determining the alternative sentence. It made
its findings of fact, calculated the Sentencing Guideline range, chose
a sentence within that range, and then determined that the sentence
would serve the purposes listed in § 3553(a). Thus, even though the
district court did impose a sentence under the Sentencing Guidelines
that violated Shatley’s Sixth Amendment rights, it announced at the
same time that if the Sentencing Guidelines became advisory, it
would impose the same sentence. In making that determination, it
properly considered the § 3553(a) factors, as required by Hughes,
Green, and Moreland. We take the district court at its word when it
stated plainly that it would impose the same sentence under an advi-
sory guideline system. Thus, the error was harmless; to remand this
case now in view of these facts would amount to an "empty formal-
ity." Revels, ___ F.3d at ___.
Shatley makes no argument that the alternative nonguideline sen-
tence is "unreasonable." See Green, 436 F.3d at 457. Accordingly, the
judgment of the district court is
AFFIRMED.