United States v. Rice

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 03-4121
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ANDRE RICE,
Defendant - Appellant.
No. 03-4233
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ANDRE RICE,
Defendant - Appellant.
On Remand from the Supreme Court of the United States.
(S. Ct. No. 04-8599)
Submitted: July 19, 2006 Decided: September 20, 2006
Before WILLIAMS, SHEDD, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
James Barlow Loggins, Assistant Federal Public Defender,
Greenville, South Carolina, for Appellant. Elizabeth Jean Howard,
OFFICE OF THE UNITED STATES ATTORNEY, Greenville, South Carolina,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
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PER CURIAM:
Andre Rice pled guilty to conspiracy to possess with
intent to distribute cocaine base, in violation of 21 U.S.C. § 846(2000). He was sentenced to 210 months of imprisonment. Rice’s
attorney filed a brief in accordance with Anders v. California, 386
U.S. 738 (1967), stating that, in his view, there were no
meritorious grounds for appeal, but raising an issue as to whether
the district court erred in denying Rice’s motion to withdraw his
guilty plea. Because the Rule 11 proceeding was adequate, and Rice
failed to provide a fair and just reason to withdraw his guilty
plea, we found no abuse of discretion by the district court in its
failure to allow the withdrawal. Accordingly, we affirmed Rice’s
conviction and sentence. See United States v. Rice, 85 F. App’x
336 (4th Cir. 2004) (Nos. 03-4121/4233). On March 21, 2005, the
Supreme Court granted Rice’s petition for a writ of certiorari,
vacated this court’s judgment, and remanded to this court for
further consideration in light of United States v. Booker, 543 U.S.
220 (2005). Rice v. United States, 544 U.S. 917 (2005). Prior to
the filing of supplemental briefs, the Government filed a consent
motion to remand.*
Rice’s sentence was imposed before the decisions in
Booker and its predecessor, Blakely v. Washington, 542 U.S. 296*
Because we are able to determine from the record whether any
Booker error occurred, we have proceeded with the appeal without
requiring supplemental briefs.
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(2004), and he did not raise objections to his sentence based on
the mandatory nature of the Sentencing Guidelines or the district
court’s application of sentencing enhancements based on facts not
admitted by him. Therefore, we review his sentence for plain
error. United States v. Hughes, 401 F.3d 540, 546-60 (4th Cir.
2005).
Rice stipulated that he was responsible for at least 500
grams, but less than 1.5 kilograms of cocaine base. Based on this
stipulation, the probation officer assessed, and the district court
applied, a base offense level of 36, pursuant to U.S. Sentencing
Guidelines Manual § 2D1.1(c)(2) (2001). The district court also
applied an additional two level enhancement under USSG § 3C1.1 for
obstruction of justice because Rice failed to appear for his
sentencing. However, the probation officer gave Rice a three-level
reduction for acceptance of responsibility under USSG § 3E1.1(a),
(b). Based on a total offense level of 35 and a criminal history
category of III, Rice’s guideline range was 210 to 262 months of
imprisonment. The court sentenced Rice to 210 months of
imprisonment.
For purposes of determining Booker error, this court
considers the guideline range based on the facts the defendant
admitted before any adjustment for acceptance of responsibility.
United States v. Evans, 416 F.3d 298, 300 n.4 (4th Cir. 2005).
Using this calculation with criminal history category III, Rice’s
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offense level would have been 36 and his guideline range 235 to 293
months of imprisonment. Because Rice’s sentence was below that
range, he cannot show plain error with respect to the two level
enhancement.
While the mandatory application of the Sentencing
Guidelines constitutes plain error, United States v. White, 405
F.3d 208, 217 (4th Cir.), cert. denied, 126 U.S. 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)). The record
does not indicate that the district court wished to impose a
sentence lower than the 210-month sentence Rice was given.
Therefore, he cannot show that he was prejudiced by the district
court’s erroneous application of the guidelines as mandatory.
Accordingly, we affirm the sentence imposed by the
district court and deny the motion to remand. 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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