United States v. Moody

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 03-4405
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
HARRY NOLAN MOODY,
Defendant - Appellant.
On Remand from the Supreme Court of the United States.
(S. Ct. No. 05-5704)
Submitted: April 7, 2006 Decided: May 4, 2006
Before MICHAEL, TRAXLER, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Kyle W. King, Weaverville, North Carolina, for Appellant. Gretchen
C. F. Shappert, United States Attorney, Charlotte, North Carolina,
Thomas R. Ascik, 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Unpublished opinions are not binding precedent in this circuit.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:
Harry Nolan Moody was convicted, by jury, of one count of
conspiracy to manufacture and distribute methamphetamine, in
violation of 21 U.S.C. §§ 841 and 846 (2000). We affirmed his
conviction and sentence, and denied rehearing. See United States
v. West, 98 Fed. Appx. 259 (4th Cir. 2004) (unpublished). Moody
petitioned the Supreme Court of the United States for writ of
certiorari, which the Supreme Court granted. This court’s judgment
was vacated, in light of the Supreme Court’s decision in United
States v. Booker, 543 U.S. 220 (2005), and remanded to this court
for further proceedings.
Moody was sentenced prior to the decisions in Booker and
its predecessor, Blakely v. Washington, 542 U.S. 296 (2004).
During the sentencing proceedings, Moody did not object to the
mandatory nature of the sentencing guidelines or the district
court’s application of sentencing enhancements based on facts not
admitted by him or found by the jury beyond a reasonable doubt.
Therefore, we review Moody’s sentence for plain error. United
States v. Hughes, 401 F.3d 540, 547-48 (4th Cir. 2005).
Moody contends that the district court plainly erred in
applying the guidelines as mandatory. Moody argues that the
district court would not have designated him a career offender
under U.S. Sentencing Guidelines Manual § 4B1.1 (2001) (“USSG”) had
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the district court treated the sentencing guidelines as advisory.*
Our review of the record discloses that the district court gave no
indication that it would have either refrained from classifying
Moody as a career criminal or otherwise imposed a lower sentence
under an advisory guideline system. Therefore, Moody cannot show
actual prejudice, and resentencing is not authorized on this
ground. United States v. White, 405 F.3d 208, 223-24 (4th Cir.
2005).
Accordingly, we affirm the sentence imposed by the
district 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.
AFFIRMED
*
Moody does not contend the district court made impermissible
factual findings regarding his criminal history in order to
classify him as a career offender; thus, the only error alleged is
non-constitutional error.
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