United States v. Jeffers

ON REHEARING
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4018
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
TIMOTHY LLOYD JEFFERS,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. William L. Osteen, District
Judge. (CR-03-209)
Submitted: May 18, 2005 Decided: July 28, 2005
Before WIDENER, GREGORY, and DUNCAN, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
Lisa S. Costner, LISA S. COSTNER, P.A., Winston-Salem, North
Carolina, for Appellant. Anna Mills Wagoner, United States
Attorney, L. Patrick Auld, 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Unpublished opinions are not binding precedent in this circuit.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:
Timothy Lloyd Jeffers petitions this Court for rehearing
of his earlier appeal. In light of United States v. Booker, 125 S.
Ct. 738 (2005), and United States v. Hughes, 401 F.3d 540 (4th Cir.
2005), we grant the petition for rehearing and find that the
district court plainly erred in imposing a sentence that exceeded
the maximum allowed based on facts established by Jeffers’ guilty
plea.
In United States v. Booker, 125 S. Ct. 738 (2005), the
Supreme Court held that Blakely v. Washington, 124 S. Ct. 2531(2004), applies to the federal sentencing guidelines and that the
mandatory guidelines scheme which provides for sentence
enhancements based on facts found by the court violated the Sixth
Amendment; the Court remedied the constitutional violation by
severing and excising the statutory provisions that mandate
sentencing and appellate review under the guidelines, thus making
the guidelines advisory. 125 S. Ct. at 746-48, 755-56 (Stevens,
J.), 756-57 (Breyer, J.). Subsequently, in United States v.
Hughes, 401 F.3d 540 (4th Cir. 2005), this court held that a
sentence that is enhanced based on facts found by the court, not by
a jury (or, in a guilty plea case, admitted by the defendant),
violates the Sixth Amendment and constitutes plain error that
affects the defendant’s substantial rights and warrants reversal
under Booker when the record does not disclose what discretionary
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sentence the district court would have imposed under an advisory
guideline scheme. Hughes, 401 F.3d at 545-56 (citing United
States v. Olano, 507 U.S. 725, 731-32 (1993)).
Jeffers’ case involves a Sixth Amendment violation, and
is therefore analyzed under Hughes. Jeffers’ base offense level
was 6. USSG § 2B1.1. He received enhancements of fourteen levels
based on the district court’s findings that he was responsible for
a loss of $320,164 and abused a position of trust. The information
and factual basis for his guilty plea established only a loss of
$105,164. Without the enhancements, Jeffers’ offense level would
have been 6, further reduced to 4 by the adjustment for acceptance
of responsibility, and his guideline range would have been 0-6
months rather than 24-30 months.1 Thus, the maximum sentence
authorized by the facts Jeffers admitted pursuant to his guilty
plea was six months. Hughes, 401 F.3d at 547. Because Jeffers’
twenty-four-month sentence was longer as a result of the Sixth
Amendment violation, his substantial rights were affected. Id. at
548-49. Because, as in Hughes, the district court did not indicate
what sentence it would impose under an advisory guideline scheme,
we exercise our discretion to notice the error.2
1
Even if Jeffers had not received an adjustment for acceptance
of responsibility, his guideline range would have remained 0-6
months. USSG § 5A (Sentencing Table).
2
Just as we noted in Hughes, “[w]e of course offer no
(continued...)
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We therefore vacate the sentence and remand for
proceedings consistent with Booker and Hughes.3 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
2
(...continued)
criticism of the district court judge, who followed the law and
procedure in effect at the time” of Jeffers’ sentencing. Hughes,
401 F.3d at 545 n.4. See generally Johnson v. United States, 520
U.S. 461, 468 (1997) (stating that an error is “plain” if “the law
at the time of trial was settled and clearly contrary to the law at
the time of appeal).
3
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.- 4 -