United States v. Rideout

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 02-4302
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
KEVIN A. RIDEOUT, a/k/a JD,
Defendant - Appellant.
On Remand from the Supreme Court of the United States.
(S. Ct. No. 03-9402)
Submitted: June 5, 2006 Decided: July 31, 2006
Before WILLIAMS and MICHAEL, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Jeffrey Alan Holmstrand, MCDERMOTT & BONENBERGER, PLLC, Wheeling,
West Virginia, for Appellant. Thomas E. Johnston, United States
Attorney, Sherry L. Muncy, Assistant United States Attorney,
Clarksburg, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
This case is before the court on remand from the United
States Supreme Court. We previously affirmed Kevin A. Rideout’s
conviction and sentence. United States v. Rideout, No. 02-4302
(4th Cir. Nov. 13, 2003) (unpublished). The Supreme Court vacated
our decision and remanded Rideout’s case to us for further
consideration in light of United States v. Booker, 543 U.S. 220(2005).
In Rideout’s supplemental brief, filed at this court’s
direction after the Supreme Court’s remand, he contends that he is
entitled to resentencing in light of Booker because his sentence
was enhanced based on facts not found by the jury and the district
court considered the guidelines as mandatory. Specifically, he
argues that his offense level was increased based on judicial
fact-finding with respect to the two-level enhancement for
obstruction of justice and drug quantity relevant conduct findings.
This court has identified two types of Booker error: a
violation of the Sixth Amendment, and a failure to treat the
sentencing guidelines as advisory. United States v. Hughes, 401
F.3d 540, 552 (4th Cir. 2005). A Sixth Amendment error occurs when
the district court imposes a sentence greater than the maximum
permitted based on facts found by a jury or admitted by the
defendant. Booker, 543 U.S. at 244-45. Because Rideout did not
raise a Sixth Amendment challenge or object to the mandatory
- 2 -
application of the guidelines in the district court, review is for
plain error. Hughes, 401 F.3d at 547. To demonstrate plain error,
an appellant must establish that an error occurred, that it was
plain, and that it affected his substantial rights. United
States v. Olano, 507 U.S. 725, 731-32 (1993); Hughes, 401 F.3d at
547-48. If an appellant meets these requirements, the court’s
“discretion is appropriately exercised only when failure to do so
would result in a miscarriage of justice, such as when the
defendant is actually innocent or the error seriously affects the
fairness, integrity or public reputation of judicial proceedings.”
Hughes, 401 F.3d at 555 (internal quotation marks and citation
omitted). While the mandatory application of the guidelines
constitutes plain error, United States v. White, 405 F.3d 208, 217
(4th Cir.), cert. denied, 126 S. Ct. 668 (2005), a defendant who
seeks resentencing on this ground must show actual prejudice, i.e.,
a “nonspeculative basis for concluding that the treatment of the
guidelines as mandatory ‘affect[ed] the district court’s selection
of the sentence imposed.’” Id. at 223 (quoting Williams v. United
States, 503 U.S. 193, 203 (1992)).
Removing the obstruction of justice enhancement reduces
Rideout’s offense level by two levels from 34 to 32, which,
combined with criminal history category VI, would make the
guideline range 210 to 262 months. Because Rideout’s 262-month
sentence was within that range, he cannot show plain error.
- 3 -
Moreover, nothing in the sentencing transcript or elsewhere in the
record provides a non-speculative basis for concluding that the
district court would have given Rideout a lower sentence if the
guidelines were not mandatory. Therefore, Rideout has not
established plain error that warrants resentencing under White, 405
F.3d at 223.
Rideout also challenges the district court’s calculation of
the drug quantity, arguing that no specific drug quantities were
contained in the indictment, in violation of his Fifth Amendment
rights, and that the district court’s factual findings were not
supported by the record. We find that these claims are beyond the
Supreme Court’s Booker remand and are prohibited by the mandate
rule. See United States v. Bell, 5 F.3d 64, 66 (4th Cir. 1993)
(“[f]ew legal precepts are as firmly established as the doctrine
that the mandate of a higher court is ‘controlling as to matters
within its compass’”)(quoting Sprague v. Ticonic Nat’l Bank, 307
U.S. 161, 168 (1939)). Further, as to Rideout’s first argument, in
response to his claim in his first appeal that by allowing the jury
to calculate drug quantity the district court constructively
amended the indictment, we found that even assuming Rideout
satisfied the first three elements of plain error, the court would
not notice the error, under United States v. Cotton, 535 U.S. 625(2002), because the evidence of drug quantity was “overwhelming and
essentially uncontroverted.” United States v. Rideout, 2003 WL
- 4 -
22673668,*2. In addition, Rideout’s position is undercut by the
fact that he requested that the district court adopt the drug
quantity of 64.39 grams under which he was sentenced.* As to
Rideout’s argument that the district court’s factual findings as to
drug quantity were not supported by the record, as we found in the
first appeal, the evidence of drug quantity was overwhelming.
To the extent Rideout argues that the district court’s
findings as to drug quantity violated the Sixth Amendment, we find
the sentence is not plainly erroneous. Rideout argues that the
drug quantity should have been 48.915 grams of cocaine base,
subjecting him to a base offense level of 30 and guideline range of
168 to 210 months. However, the jury’s special interrogatory form
specifies that the crime involved, beyond a reasonable doubt, “50
grams or more of cocaine base.” The jury’s verdict thus results in
a base offense level of 32 under USSG § 2D1.1(c)(4), which is the
same base offense level under which Rideout was sentenced. Thus,
Rideout’s sentence did not exceed the permissible sentence
authorized by the jury’s verdict.
Rideout also moves for leave to submit a pro se
supplemental brief. We grant the motion for leave to file the pro
*
It has long been recognized that “a court can not be asked by
counsel to take a step in a case, and later be convicted of error
because it has complied with such [a] request.” Shields v. United
States, 273 U.S. 583, 586 (1927). “A defendant in a criminal case
cannot complain of error which he himself has invited.” Id.(internal quotation and citation omitted).
- 5 -
se supplemental brief, but find the claims are beyond the scope of
the Supreme Court’s Booker remand and are foreclosed by the mandate
rule. See Bell, 5 F.3d at 66.
In sum, upon reconsideration in light of Booker, we
affirm Rideout’s sentence. In addition, we reinstate our
November 13, 2003 opinion affirming his convictions. 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
- 6 -