United States v. Mills

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 03-4177
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
TIMOTHY EARL MILLS,
Defendant - Appellant.
On Remand from the Supreme Court of the United States.
(S. Ct. No. 04-1620)
Submitted: April 21, 2006 Decided: May 26, 2006
Before WIDENER, GREGORY, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Walter L. Jones, JONES AND FREE, Greensboro, North Carolina, for
Appellant. Anna Mills Wagoner, United States Attorney, Sandra J.
Hairston, 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Unpublished opinions are not binding precedent in this circuit.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:
Timothy Earl Mills pled guilty to conspiracy to
distribute more than one kilogram of heroin and more than fifty
grams of crack cocaine, 21 U.S.C.A. §§ 846, 841(b)(1)(A) (West 2000
& Supp. 2003), and received a sentence of 150 months imprisonment.
He sought to appeal his sentence on the ground that the district
court erred in refusing to depart below the sentencing guidelines
range pursuant to U.S. Sentencing Guidelines Manual § 5H1.4, p.s.
(2002). We dismissed his appeal for lack of jurisdiction. United
States v. Mills, No. 03-4177, 120 F. App’x 436 (4th Cir. 2005).
The Supreme Court subsequently granted Mills’ petition for
certiorari, vacated this court’s judgment, and remanded his case
for further proceedings in light of United States v. Booker, 543
U.S. 220 (2005).
Mills was sentenced before the decisions in Booker and
its predecessor, Blakely v. Washington, 542 U.S. 296 (2004), and he
did not raise objections to his sentence based on the mandatory
nature of the guidelines or the district court’s application of
sentencing enhancements based on judicial fact finding rather than
facts he admitted. Therefore, we review his sentence for plain
error. United States v. Hughes, 401 F.3d 540, 547 (4th Cir. 2005).
Mills now contends that his sentence was illegal in light of Booker
because the district court applied the sentencing guidelines as
mandatory. He maintains that, had the district court not been
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subject to “the strictures of the Guidelines,” it might have been
willing to depart downward pursuant to § 5H1.4.
While the mandatory application of the guidelines
constitutes plain error, United States v. White, 405 F.3d 208, 217
(4th Cir.), cert. denied, 126 U.S. 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)). The record does not indicate
that the district court wished to impose a sentence lower than the
150-month sentence Mills was given. Therefore, he cannot show that
he was prejudiced by the district court’s erroneous application of
the guidelines as mandatory.
We therefore affirm the sentence. 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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