United States v. Hudson

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 03-4358
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
DAVIDE HUDSON,
Defendant - Appellant.
On Remand from the Supreme Court of the United States.
(S. Ct. No. 04-8189)
Submitted: May 15, 2006 Decided: July 14, 2006
Before MOTZ, TRAXLER, and KING, Circuit Judges.
Affirmed in part; vacated and remanded in part by unpublished per
curiam opinion.
Patricia A. Kurelac, KURELAC LAW OFFICES, Moundsville, West
Virginia, for Appellant. Charles T. Miller, Acting United States
Attorney, Stephanie L. Haines, Assistant United States Attorney,
Huntington, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
On May 18, 2004, we affirmed Davide Hudson’s convictions
and sentence. See United States v. Hudson, No. 03-4358, 2004 WL
1093949 (4th Cir. May 18, 2004) (unpublished). On February 28,
2005, the Supreme Court of the United States granted Hudson’s
petition for writ of certiorari, vacated this court’s judgment, and
remanded for further consideration in light of United States v.
Booker, 543 U.S. 220 (2005). We affirm Hudson’s conviction for the
reasons stated in our prior opinion. We vacate his sentence and
remand for resentencing.
In Booker, the Supreme Court held that Blakely v.
Washington, 542 U.S. 296 (2004), applied to the federal sentencing
guidelines and the mandatory manner in which the guidelines
required courts to impose sentencing enhancements based on facts
found by the court by a preponderance of the evidence violated the
Sixth Amendment. Thus, when a defendant pleads guilty and is
sentenced under the mandatory guidelines scheme, “[a]ny fact (other
than a prior conviction) which is necessary to support a sentence
exceeding the maximum authorized by the facts established by a plea
of guilty or a jury verdict must be admitted by the defendant or
proved to a jury beyond a reasonable doubt.” Booker, 543 U.S. at
244.
Although Hudson objected to the district court’s
enhancements, his objections did not rest on the rule in Blakely.
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Therefore, this court’s review is for plain error. See United
States v. Hughes, 401 F.3d 540, 547 (4th Cir. 2005). In Hughes,
this court held that a sentence imposed under the pre-Booker
mandatory sentencing scheme and enhanced based on facts found by
the court, not by a jury, constitutes plain error. That error
affects the defendant’s substantial rights and warrants reversal
under Booker when the record does not disclose what discretionary
sentence the district court would have imposed under an advisory
guidelines scheme. Hughes, 401 F.3d at 555-56.
Hudson’s twenty year sentence exceeded the sentencing
range that would have applied absent the enhancements that were
based on facts not found by the jury or admitted by Hudson.
Because the district court engaged in judicial fact-finding to
determine Hudson’s offense level, and because the resulting
guideline range was imposed in a mandatory manner, there was a
Sixth Amendment violation under Booker.*
Although the sentencing guidelines are no longer
mandatory, Booker makes clear a sentencing court must still
“consult [the] Guidelines and take them into account when
sentencing.” 543 U.S. at 224. On remand, the district court
should first determine the appropriate sentencing range under the
*
Just as we noted in Hughes, 401 F.3d at 545 n.4, “[w]e of
course offer no criticism of the district judge, who followed the
law and procedure in effect at the time” of Hudson’s sentencing.
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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.A. § 3553(a) (West 2000 & Supp. 2005), 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.A. § 3553(c)(2). Id. The sentence must be
within the statutorily prescribed range and reasonable. Id. at
547; see also United States v. Green, 436 F.3d 449, 456 (4th Cir.
2006).
Accordingly, although we affirm Hudson’s conviction, we
vacate his sentence and remand for further consideration in light
of Booker. 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 IN PART;
VACATED AND REMANDED IN PART
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