United States v. Shull

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4767
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JONATHAN LEE SHULL,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Asheville. Lacy H. Thornburg,
District Judge. (CR-04-18)
Submitted: February 10, 2006 Decided: March 13, 2006
Before LUTTIG, MOTZ, and KING, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
Eric A. Bach, Charlotte, North Carolina, for Appellant. Gretchen
C. F. Shappert, United States Attorney, Charlotte, North Carolina,
Donald David Gast, Assistant United States Attorney, Asheville,
North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Jonathan Lee Shull robbed two banks in North Carolina and
subsequently entered into a plea agreement pursuant to which he
pled guilty to two counts of bank robbery, 18 U.S.C. § 2113(a)
(2000). Shull also was charged in an information with the armed
robbery of a bank in Tennessee. See 18 U.S.C. § 2113(d) (2000).
The Tennessee case was transferred to the Western District of North
Carolina pursuant to Fed. R. Crim. P. 20, and the cases were
consolidated for sentencing.
With respect to the most serious of the three crimes, the
Tennessee robbery, the probation officer assigned a base offense
level of 20. See U.S. Sentencing Guidelines Manual § 2B3.1(a)
(2003). Two levels were added because property of a financial
institution was taken. See USSG § 2B3.1(b)(1). Six levels were
added because Shull used a firearm during the robbery. See USSG
§ 2B3.1(b)(2)(B). One level was added based on amount of loss.
See USSG § 2B3.1(b)(7)(B). Finally, two levels were added for
obstruction of justice because Shull escaped from custody while
awaiting sentencing. See USSG § 3C1.1. His adjusted offense level
was 31. The offenses were grouped. See USSG § 3D1.4. The total
number of units was 2, and the offense level was accordingly
increased by two, for a total offense level of 33. With a criminal
history category of VI, Shull’s guideline range was 235-293 months.
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Shull raised a Sixth Amendment challenge to the
presentence report. In particular, Shull denied using a firearm
during the Tennessee robbery and contended that the probation
officer had erroneously recommended the corresponding six-level
enhancement to his offense level. At sentencing, the district
court heard testimony on the issue, made a credibility
determination against Shull, and found that the enhancement was
correct.
The court sentenced Shull to 293 months for the Tennessee
robbery and 240 months on each of the North Carolina robberies.
The sentences run concurrently. Shull timely appealed, raising
only one issue: that his sentence violates the Sixth Amendment
under United States v. Booker, 543 U.S. 220 (2005).
After Shull filed his brief, the United States and Shull
filed a Joint Motion to Remand for Resentencing. The parties
concur that the sentence violates the Sixth Amendment under Booker
and ask that the sentence be vacated and the matter remanded for
resentencing.
“To establish that a Sixth Amendment error occurred in
his sentencing, [Shull] must show that the district court imposed
a sentence exceeding the maximum allowed based only on the facts
that he admitted.” See United States v. Evans, 416 F.3d 298, 300
(4th Cir. 2005). Based only on the facts that Shull admitted, his
offense level would have been 30. With a criminal history category
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of VI, his guideline range would have been 168-210 months. Shull’s
sentence of 293 months exceeds the maximum authorized by the facts
he admitted. This Sixth Amendment error requires resentencing.
We accordingly grant the motion to remand, vacate the
sentence, and remand for resentencing. On remand, the district
court should first determine the appropriate sentencing range under
the guidelines, making all factual findings appropriate for that
determination. United States v. Hughes, 401 F.3d 540, 546 (4th
Cir. 2005). The court should consider this sentencing range along
with the other factors described in 18 U.S.C.A. § 3553(a) (West
2000 & Supp. 2005), and then impose a sentence. Id. If that
sentence falls outside the guideline range, the court should
explain its reasons for the departure as required by 18 U.S.C.A.
§ 3553(c)(2). Id. The sentence must be “within the statutorily
prescribed range and . . . reasonable.” Hughes, 401 F.3d at 546.*
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
*
Just as we noted in Hughes, “[w]e offer no criticism of the
district court judge, who followed the law and procedure in effect
at the time of sentencing.” Hughes, 401 F.3d at 545 n.4.
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