United States v. Locklear

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 03-4495
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
MELVIN LOCKLEAR,
Defendant - Appellant.
No. 03-4505
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
MELVIN LOCKLEAR,
Defendant - Appellant.
On Remand from the Supreme Court of the United States.
(S. Ct. No. 04-6095)
Submitted: July 12, 2006 Decided: September 20, 2006
Before WILKINSON, NIEMEYER, and MOTZ, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant. Frank D. Whitney, United States Attorney, Anne M.
Hayes, Christine Witcover Dean, Assistant United States Attorneys,
Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
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PER CURIAM:
Melvin Locklear appeals his 235-month prison sentence
resulting from his conviction for distribution of cocaine base, in
violation of 21 U.S.C. § 841 (2000), and conspiracy to distribute
cocaine base, in violation of 21 U.S.C. § 846 (2000). Although we
previously affirmed Locklear’s convictions and sentence, the
Supreme Court granted Locklear’s petition for certiorari, vacated
this court’s judgment, and remanded for further consideration in
light of United States v. Booker, 543 U.S. 220, 125 S. Ct. 738(2005). We reaffirm Locklear’s conviction, which he does not
challenge, but vacate his sentence and remand for resentencing in
light of Booker.
Locklear contends that the district court improperly
sentenced him when it imposed a sentence greater than the maximum
authorized by the facts to which he admitted in his guilty plea.1
Because he failed to raise this claim below, we review it for plain
error. United States v. Hughes, 401 F.3d 540, 547 (4th Cir. 2005).
Locklear pled guilty to distribution of at least five grams of
cocaine base and conspiracy to distribute at least fifty grams of
1
The Government contends that Locklear admitted the higher
drug quantity by not objecting to the presentence report. However,
in United States v. Milam, 443 F.3d 382 (4th Cir. 2006), this court
determined that a failure to object to the presentence report does
not constitute an admission of facts set forth in the report for
the purposes of Booker. “To presume, infer, or deem a fact
admitted because the defendant has remained silent is contrary to
the Sixth Amendment.” Id.- 3 -
cocaine base. At sentencing, the district court held Locklear
accountable for 1.76 kilograms of cocaine base for a base offense
level of thirty-eight under U.S. Sentencing Guidelines Manual §
2D1.1(c)(1) (2004). The district court also added two offense
levels for possession of a dangerous weapon pursuant to USSG
§ 2D1.1(b)(1), and subtracted three offense levels for acceptance
of responsibility under USSG § 3E1.1(a). The drug quantity stated
in the indictment equates only to a base offense level of thirty-
two and not the base offense level of thirty-eight upon which he
was sentenced. Also, Locklear’s guilty plea did not include an
admission to the possession of a firearm; thus the district court’s
two offense level increase for possession of a dangerous weapon
also violated the Sixth Amendment. Because Locklear’s criminal
history level was II, the district court’s drug quantity and role
in the offense factual findings increased Locklear’s sentencing
range from 135-168 months to 235-293 months. Locklear’s 235-month
sentence thus exceeded the sentence that could have been imposed
based only on the facts admitted to in the guilty plea. The
district court erred in basing the sentence on judge-found facts
under a mandatory guidelines regime, and the error was plain.
Hughes, 401 F.3d at 547-48. Because Locklear’s sentence was longer
than what could have been imposed based on the guilty plea alone,
the error affected his substantial rights, id. at 548, and we will
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notice the error, id. at 555. Therefore, Locklear must be
resentenced.2
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 the factual findings appropriate for that
determination. See 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) (2000), 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) (2000). Id. The sentence must
be “within the statutorily prescribed range and . . . reasonable.”
Id. at 546-47.
Accordingly, we vacate Locklear’s sentence and remand for
resentencing 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.
VACATED AND REMANDED
2
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 Locklear’s sentencing.
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