United States v. Price

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4056
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
PRINCE ANDRE PRICE,
Defendant - Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Charleston. David A. Faber, Chief
District Judge. (CR-04-97)
Submitted: June 17, 2005 Decided: November 1, 2005
Before LUTTIG, WILLIAMS, and GREGORY, Circuit Judges.
Affirmed in part, vacated in part, and remanded by unpublished per
curiam opinion.
Donald L. Stennett, BREWSTER, MORHOUS, CAMERON, CARUTH, MOORE,
KERSEY & STAFFORD, P.L.L.C., Charleston, West Virginia, for
Appellant. Charles T. Miller, Acting United States Attorney,
Steven I. Loew, Assistant United States Attorney, Charleston, West
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Prince Andre Price appeals his seventy-two month sentence
resulting from his conviction for being a felon in possession of a
firearm, 18 U.S.C. § 922(g) (2000). We affirm Price’s conviction,
but vacate and remand for resentencing.
Price pled guilty and does not challenge his conviction.
Price claims the district court erred in failing to treat the
sentencing guidelines as advisory when imposing his sentence. As
Price properly raised this issue in the district court by objecting
to his sentence based on United States v. Booker, 125 S. Ct. 738(2005), we review for harmless error. The Government bears the
burden in harmless error review of showing beyond a reasonable
doubt that the error did not affect the defendant’s substantial
rights. United States v. Mackins, 315 F.3d 399, 405 (4th Cir.
2003). The Government did not meet this burden because the
district court gave no indication what the sentence would have been
had the district court not been bound by the guidelines. We would
have to speculate that the district court’s error in thinking
itself bound by the guidelines did not affect the sentence. In
light of Booker, we vacate Price’s sentence and remand the case for
resentencing.*
*
Just as we noted in United States v. Hughes, 401 F.3d 540,
545 n.4 (4th Cir. 2005), “[w]e of course offer no criticism of the
district judge, who followed the law and procedure in effect at the
time” of Price’s sentencing.
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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. See United States v. Hughes, 401 F.3d 540, 546 (4th
Cir. 2005) (applying Booker on plain error review). The court
should consider this sentencing range along with the other factors
described in 18 U.S.C. § 3553(a) (2000), and then impose a
sentence. Id. If that sentence falls outside the guidelines
range, the court should explain its reasons for the departure as
required by 18 U.S.C. § 3553(c)(2) (2000). Id. The sentence must
be “within the statutorily prescribed range and . . . reasonable.”
Id. at 546-47.
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 IN PART,
VACATED IN PART,
AND REMANDED
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