United States v. Gill

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4947
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
STANLEY O’NEAL GILL,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. James C. Fox, Senior
District Judge. (CR-04-20-F)
Submitted: August 31, 2005 Decided: October 4, 2005
Before WILLIAMS, MICHAEL, and TRAXLER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Geoffrey W. Hosford, HOSFORD & HOSFORD, P.L.L.C., Wilmington, North
Carolina, for Appellant. Frank D. Whitney, United States Attorney,
Anne M. Hayes, Christine Witcover Dean, Assistant United States
Attorneys, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Stanley O’Neal Gill pled guilty to conspiracy to possess
with intent to distribute 500 grams or more of cocaine and 5 grams
or more of cocaine base (crack), 21 U.S.C. § 846 (2000) (Count
One), and possession of 500 grams of more of cocaine with intent to
distribute, 21 U.S.C. § 841(a) (2000) (Count Two). The district
court imposed a guideline sentence of 262 months imprisonment and
an identical alternative sentence under its statutory authority, 18
U.S.C.A. § 3553(a) (West 2000 & Supp. 2005). Gill appeals his
sentence, asserting that resentencing is required under United
States v. Booker, 125 S. Ct. 738 (2005). We affirm.
Following his guilty plea, Gill objected to the drug
quantities for which he was held responsible in the presentence
report, as well as to the recommended four-level leader adjustment,
and two-level enhancement for possession of a firearm during the
offense. Citing Blakely v. Washington, 542 U.S. 296 (2004), he
argued that the sentence enhancements were based on facts he had
neither been charged with nor admitted and thus violated the Sixth
Amendment.
At the sentencing hearing on October 18, 2004, the
district court overruled Gill’s Blakely motion, heard the
government’s evidence of Gill’s drug-related activities from six
witnesses, and determined that Gill was responsible for 15.5
kilograms of cocaine and 5.4 kilograms of crack. The court gave
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Gill a two-level adjustment for his leadership role rather than the
four-level adjustment recommended in the presentence report, added
a two-level enhancement for possession of a firearm during the
offense, and gave Gill a three-level reduction for acceptance of
responsibility. The final offense level was 39. Gill was in
criminal history category I, making the guideline range 262-327
months. Because of Gill’s long military service, the court imposed
the minimum guideline sentence of 262 months. The court
recommended an intensive drug treatment program in light of Gill’s
drug addiction. The court then imposed an identical alternative
sentence of 262 months under its statutory authority, 18 U.S.C.
§ 3553(a).
Gill contends on appeal that his sentence was imposed in
violation of the Sixth Amendment, that he should be resentenced
under an advisory guideline scheme, and that his sentence was
unreasonable.
In United States v. Booker, 125 S. Ct. 738 (2005), the
Supreme Court held that its holding in Blakely applied to the
federal sentencing guidelines and that the mandatory manner in
which the guidelines required courts to impose sentencing
enhancements based on facts found by the court by a preponderance
of the evidence violated the Sixth Amendment. 125 S. Ct. at 755-
56. The Court remedied the constitutional violation by severing
two statutory provisions that required sentencing courts to impose
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a sentence within the applicable guideline range, and set forth
appellate standards of review for guideline issues, thereby making
the guidelines advisory. Id. at 756-67.
After Booker, courts must calculate the appropriate
guidelines range, consider the range in conjunction with other
relevant factors under the guidelines and § 3553(a), and impose a
sentence. This remedial scheme applies to any sentence imposed
under the mandatory sentencing guidelines, regardless of whether or
not the sentence violates the Sixth Amendment. Booker, 125 S. Ct.
at 769. However, ordinary doctrines such as plain error and
harmless error still apply. Id.
Because Gill did not admit the drug quantities found by
the district court, his leadership role in the conspiracy, or that
the firearm enhancement was warranted, the district court’s factual
findings on these issues, all of which increased the sentence,
violated the Sixth Amendment. The government concedes error in
this respect. However, because the district court imposed an
alternative discretionary sentence pursuant to § 3553(a) that was
identical to the guidelines sentence, the Sixth Amendment error was
harmless.
Gill claims that he is entitled to a new sentencing under
an advisory guidelines scheme. We disagree. Under either a plain
error or harmless error standard of review, in light of the
identical alternative sentence imposed by the district court, we
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conclude that no reversible error occurred. See United States v.
White, 405 F.3d 208, 223 (4th Cir. 2005) (noting that substantial
rights inquiry under plain or harmless error is the same and that
only difference is who bears burden of proof).
Finally, to the extent that reasonableness review is
available to a defendant sentenced before Booker announced its
remedial scheme, we conclude that the sentence was reasonable. The
Sixth Amendment error was harmless and Gill has not shown that he
was prejudiced by the error of treating the guidelines as
mandatory.
We therefore affirm the sentence imposed by the district
court. 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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