United States v. Austin

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4153
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
CHRISTOPHER BRIAN AUSTIN,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Charleston. David C. Norton, District Judge.
(CR-04-299)
Submitted: May 5, 2006 Decided: July 20, 2006
Before LUTTIG1 and MICHAEL, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Hervery B. O. Young, Assistant Federal Public Defender, Greenville,
South Carolina, for Appellant. Jonathan S. Gasser, United States
Attorney, Carlton R. Bourne, Jr., Assistant United States Attorney,
Charleston, South Carolina, for Appellee.
1
Judge Luttig was a member of the original panel but did not
participate in this decision. This opinion is filed by a quorum of
the panel pursuant to 28 U.S.C. § 46(d).
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
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PER CURIAM:
Christopher Austin appeals the 147-month sentence imposed
after he pleaded guilty, pursuant to a plea agreement, to one count
of attempted manufacture of methamphetamine, in violation of 21
U.S.C. § 841(a)(1), (b)(1)(C) (2000), and one count of possession
of a firearm in furtherance of a drug trafficking crime, in
violation of 18 U.S.C. § 924(c) (2000). We affirm.
Austin first asserts that he did not validly waive his
right to appeal his sentence in the plea agreement. We review
whether a defendant validly waived the right to appeal de novo by
examining the totality of the circumstances. United States v.
Blick, 408 F.3d 162, 168-69 (4th Cir. 2005). Although the plea
agreement includes a very broad waiver of Austin’s right to contest
sentencing issues, we conclude that, with regard to the Guidelines2
enhancement for creating a substantial risk of harm to a minor, the
waiver is not valid.
Austin next argues that the Government breached the plea
agreement by having an agent available to testify to facts
supporting the enhancement for substantial risk of harm to a minor.
Austin did not object to the Government presenting the witness at
sentencing, and he must therefore demonstrate plain error before he
can obtain any relief. See United States v. Fant, 974 F.2d 559,
562 (4th Cir. 1992) (applying plain error analysis in context of
2
U.S. Sentencing Guidelines Manual (2003).
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breach of plea agreement). In order to do so, Austin must
establish the breach was “‘so obvious and substantial that failure
to notice and correct it affect[ed] the fairness, integrity or
public reputation of the judicial proceedings.’” United States v.
McQueen, 108 F.3d 64, 66 (4th Cir. 1997) (quoting Fant, 974 F.2d at
565). Our review of the record convinces us that the Government
did not breach the plea agreement by responding to the district
court’s questions at sentencing.
Austin next argues that his sentence was imposed in
violation of United States v. Booker, 543 U.S. 220 (2005). He
first asserts that the six-level enhancement of his offense level
for creating a substantial risk of harm to a minor was imposed
based upon facts found by the district court, in violation of his
Sixth Amendment rights. He also argues that the district court
erred in sentencing him pursuant to a mandatory Guidelines scheme.
The Government responds that, because Austin did not assert a
specific objection pursuant to Blakely v. Washington, 542 U.S. 296(2004), at sentencing, this issue is reviewed for plain error. We
recently held that a timely Blakely objection asserted at
sentencing was sufficient to preserve a claim of error under
Booker. United States v. Rodriguez, 433 F.3d 411, 415-16 (4th Cir.
2006). We find that counsel’s assertion of a Blakely objection at
sentencing was sufficient to preserve his assignment of Booker
error. We thus review Austin’s assertions of sentencing error
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under the harmless error standard. Rodriguez, 433 F.3d at 416. In
harmless error review, the “defendant is entitled to relief if an
error has affected his substantial rights,” and the burden is on
the Government to show that any error did not affect the
defendant’s substantial rights. Id.In United States v. Hughes, 401 F.3d 540 (4th Cir. 2005),
we held that a sentence that was imposed under the pre-Booker
mandatory sentencing scheme and was enhanced based on facts found
by the court, not by a jury, constitutes plain error that affects
the defendant’s substantial rights and warrants reversal under
Booker when the sentence “exceeded the maximum allowed based on the
facts found by the jury alone” and the record does not disclose
what discretionary sentence the district court would have imposed
under an advisory guideline scheme. Hughes, 401 F.3d at 546-47,
556. We have also recognized that the application of the
Guidelines as a mandatory determinant in sentencing is error that
is plain. United States v. White, 405 F.3d 208, 216-17 (4th Cir.),
cert. denied, 126 S. Ct. 668 (2005). The Government asserts that
any error is harmless in light of the district court’s announcement
of an identical alternate sentence.
In United States v. Revels, __ F.3d __, 2006 WL 1134148(4th Cir. May 1, 2006), we concluded that a Sixth Amendment error
was harmless because the error did not affect the outcome of the
proceeding, based on the district court’s announcement of an
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identical alternate sentence after considering the Guidelines as
advisory only. Id. at *3. In this case, as in Revels, the
district court announced an alternate sentence identical in all
respects to the sentence imposed. We therefore conclude that any
error in Austin’s sentence is harmless.
Accordingly, we affirm Austin’s sentence. 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
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