United States v. Jones

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4174
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ORLANDO JONES,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. Frank W. Bullock, Jr.,
District Judge. (CR-00-320)
Submitted: April 25, 2005 Decided: May 18, 2005
Before NIEMEYER and SHEDD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Vacated and remanded by unpublished per curiam opinion.
Robert L. McClellan, J. Marshall Shelton, IVEY, MCCLELLAN, GATTON
& TALCOTT, LLP, Greensboro, North Carolina, for Appellant. Anna
Mills Wagoner, United States Attorney, Lisa B. Boggs, 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Unpublished opinions are not binding precedent in this circuit.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:
Orlando Jones pled guilty to possession of a firearm by
a person previously convicted of a felony in violation of 18
U.S.C.A. §§ 922(g)(1), 924(a)(2) (West 2000 & Supp. 2004). The
district court sentenced him under the federal Sentencing
Guidelines to a 120-month term of imprisonment. This sentence was
based, in part, on the court’s findings concerning characteristics
of the offense and Jones’ prior criminal history.
Citing Blakely v. Washington, 124 S. Ct. 2531 (2004),
Jones asserts for the first time on appeal that his sentence is
unconstitutional. In United States v. Booker, 125 S. Ct. 738
(2005), the Supreme Court held that the federal Sentencing
Guidelines, under which courts were required to impose sentencing
enhancements based on facts found by the court by a preponderance
of the evidence, violated the Sixth Amendment because of their
mandatory nature. Id. at 746, 750 (Stevens, J., opinion of the
Court). The Court remedied the constitutional violation by making
the Guidelines advisory through the removal of two statutory
provisions that had rendered them mandatory. Id. at 746 (Stevens,
J., opinion of the Court); id. at 756-57 (Breyer, J., opinion of
the Court). Although Jones did not raise this Sixth Amendment
challenge at sentencing, this court has held that a mandatory
enhancement based on judicial factfinding supported by a
preponderance of the evidence constitutes plain error warranting
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correction. United States v. Hughes, 401 F.3d 540, 547-48 (4th
Cir. 2005) (citing United States v. Olano, 507 U.S. 725, 731-32
(1993)).
In light of Booker and Hughes, we find that the district
court plainly erred in sentencing Jones. Therefore, we vacate his
sentence and remand for proceedings consistent with Hughes.* Id.
at 546 (citing Booker, 125 S. Ct. at 764-65, 767 (Breyer, J.,
opinion of the 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.
VACATED AND REMANDED
*
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.
Hughes, 401 F.3d at 546. The court should consider this sentencing
range along with the other factors described in 18 U.S.C. § 3553(a)
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). Id. The sentence
must be “within the statutorily prescribed range and . . .
reasonable.” Id. at 547.
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