United States v. German

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4380
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
TONY B. GERMAN, a/k/a Antonio,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Florence. Terry L. Wooten, District Judge.
(CR-02-802)
Submitted: August 22, 2005 Decided: November 2, 2005
Before NIEMEYER, WILLIAMS, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Allen B. Burnside, Assistant Federal Public Defender, Columbia,
South Carolina, for Appellant. Rose Mary Parham, Assistant United
States Attorney, Florence, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Tony B. German pled guilty to one count of conspiracy to
distribute and possess crack cocaine and cocaine in violation of 21
U.S.C. §§ 841(a)(1), 846 (2000). German’s offense level was
modified upward to 43 because he shot and killed a woman during the
course of a drug deal gone bad. See U.S. Sentencing Guidelines
Manual §§ 2D1.1(d)(1), 2A1.1 (2002). At sentencing, German argued
the cross-reference for murder was improperly applied because the
conduct was more likely second degree murder which called for a
lower offense level. The court disagreed with German’s argument
and sentenced him to the statutory maximum, which was also the
guideline sentence, of twenty years’ imprisonment. On appeal,
German argues the court erred using the sentencing guidelines’
cross-reference for murder. He also argues the sentence violated
the rules announced in United States v. Booker, 125 S. Ct. 738(2005), and Blakely v. Washington, 542 U.S. 296 (2004). Finding no
reversible error, we affirm.
Under USSG § 2D1.1(d)(1), “[i]f a victim was killed under
circumstances that would constitute murder under 18 U.S.C. § 1111had such killing taken place within the territorial or maritime
jurisdiction of the United States, apply § 2A1.1 (First Degree
Murder).” Section 1111 includes murder in the first and second
degree. German argues that because his killing was closer to
second degree murder, USSG § 2A1.2 should apply. The Government
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argues the plain language of § 2D1.1(d)(1) compels the court to
apply the cross reference to § 2A1.1 regardless of whether the
murder was first or second degree.
We consider the plain language of the sentencing
guidelines when deciding how they are to be applied. See United
States v. Warnick, 287 F.3d 299, 304 (4th Cir. 2002) (analyzing the
plain language of the guidelines for downward reductions); United
States v. Houchins, 364 F.3d 182, 190 (4th Cir. 2004) (analyzing
the plain language of the guidelines for sentencing enhancements).
Because the plain language of § 2D1.1 compels the district court to
impose the offense level under § 2A1.1, we find the court did not
err in setting German’s base offense level at 43.
German did not object at sentencing to the district
court’s fact finding or the use of the guidelines as mandatory.
Accordingly, our review is for plain error. See Fed. R. Crim. P.
52(b); United States v. Olano, 507 U.S. 725, 731-32 (1993). To
establish plain error, German must show an error occurred, the
error was plain, and the error affected his substantial rights.
See Olano, 507 U.S. at 732. Even if German makes this three-part
showing, correction of the error remains within our discretion,
which should not be exercised “unless the error ‘seriously
affect[s] the fairness, integrity or public reputation of judicial
proceedings.’” Id. (quoting United States v. Young, 470 U.S. 1, 15
(1985)) (internal quotation marks omitted) (alteration added).
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We find German admitted to the conduct that resulted in
the increase in the offense level based upon the cross-reference
for murder. For instance, counsel stated at sentencing that “we
agree with the facts as set forth in the presentence report,”
specifically referring to the facts that supported the murder
enhancement. (J.A. at 121). Thus, the district court was not
called upon to engage in fact finding with respect to whether or
not German engaged in the conduct that resulted in the increased
offense level.
As a result, German’s only argument is whether the
district court plainly erred because of the mandatory application
of the sentencing guidelines. In United States v. White, 405 F.3d
208 (4th Cir. 2005), we held the mandatory application of the
guidelines is plain error. However, we also held prejudice from
the error cannot be presumed. Id. at 219. Accordingly, German
must show the district court’s mandatory application of the
sentencing guidelines was actually prejudicial and affected the
outcome of the proceedings. Id. at 223. We find German failed to
establish actual prejudice. As a result, we affirm the sentence
and leave German’s unchallenged conviction undisturbed.
We grant German’s motion to file a supplemental brief.
We dispense with oral argument because the facts and legal
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contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED
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