United States v. Allen Alleyne

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4208
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ALLEN RYAN ALLEYNE,
Defendant - Appellant.
On Remand from the Supreme Court of the United States.
(S. Ct. No. 11-9335)
Submitted: September 12, 2013 Decided: September 24, 2013
Before WILKINSON, KING, and AGEE, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
Michael S. Nachmanoff, Federal Public Defender, Mary E. Maguire,
Assistant Federal Public Defender, Patrick L. Bryant, Appellate
Attorney, Richmond, Virginia, for Appellant. Neil H. MacBride,
United States Attorney, Alexandria, Virginia, Michael R. Gill,
Assistant United States Attorney, Richmond, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Allen Alleyne was convicted of using or carrying a
firearm during and in relation to a crime of violence in
violation of 18 U.S.C. § 924(c)(1)(A) (2006), an offense that
carries a mandatory minimum sentence of five years’
imprisonment. At sentencing, the district court found, by a
preponderance of the evidence, that the firearm had been
brandished, a finding that increased the mandatory minimum term
to seven years. The district court imposed an imprisonment term
of seven years. Alleyne appealed his sentence, and we affirmed,
finding that Alleyne’s challenge was foreclosed by Harris v.
United States, 536 U.S. 545 (2002) (holding that a defendant’s
right to trial by jury is not violated when a mandatory minimum
sentence is imposed based on judicial fact finding). See United
States v. Alleyne, 457 F. App’x 348 (4th Cir. 2011).
The Supreme Court subsequently vacated this court’s
judgment with respect to Alleyne’s sentence, overruled Harris,
and remanded for resentencing in light of the jury’s verdict.
See Alleyne v. United States, 133 S. Ct. 2151 (2013).
Accordingly, we vacate the sentence and remand for resentencing,
consistent with the Supreme Court’s decision in Alleyne. We
dispense with oral argument because the facts and legal
2
contentions are adequately resented in the material before this
court and argument will not aid the decisional process.
VACATED AND REMANDED
3