UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4143
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
TERRENCE JAVON ALLEN, a/k/a Terrence Devon
Allen,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Newport News. Rebecca Beach Smith,
District Judge. (CR-03-87)
Submitted: February 11, 2005 Decided: March 4, 2005
Before LUTTIG, WILLIAMS, and MOTZ, Circuit Judges.
Affirmed in part, vacated in part, and remanded by unpublished per
curiam opinion.
Keith L. Kimball, COLGAN, KIMBALL & CARNES, Virginia Beach,
Virginia, for Appellant. Paul J. McNulty, United States Attorney,
Robert E. Bradenham II, Assistant United States Attorney, Brian C.
Paschall, Third Year Law Student, Newport News, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Terrence Javon Allen appeals the twenty-four month
sentence imposed after he was convicted of escape, in violation of
18 U.S.C. § 751(a) (2000). We affirm Allen’s conviction, but
vacate his sentence and remand for re-sentencing.
In determining the applicable sentencing range under the
Sentencing Guidelines,* the probation officer applied a base
offense level of thirteen, which was reduced by four levels
pursuant to USSG § 2P1.1(a)(1), (b)(3) because Allen escaped from
a community corrections center. The probation officer then
assessed a two-level enhancement for reckless endangerment. USSG
§ 3C1.2. Allen’s total offense level was eleven, which, combined
with his criminal history category of V, yielded an imprisonment
range of twenty-four to thirty months. At sentencing, Allen
objected to the enhancement for reckless endangerment, arguing that
his flight did not create a substantial risk of death or serious
bodily injury to another person. The district court overruled
Allen’s objection and sentenced Allen to twenty-four months in
prison, three years of supervised release, and a $100 special
assessment.
On appeal, Allen contends that the two-level enhancement
for reckless endangerment constitutes plain error under the Supreme
Court’s decisions in Blakely v. Washington, 124 S. Ct. 2531 (2004),
*
U.S. Sentencing Guidelines Manual (2002) (“USSG”).
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and United States v. Booker, 125 S. Ct. 738 (2005), and this
court’s decision in United States v. Hughes, __ F.3d __, 2005 WL
147059 (4th Cir. Jan. 24, 2005), because it was based upon facts
not charged in the indictment or found by the jury. Allen does not
contest his conviction or the validity of the district court’s
factual findings that supported application of the reckless
endangerment enhancement.
In Booker the Supreme Court applied the Blakely decision
to the federal sentencing guidelines and concluded that the Sixth
Amendment is violated when a district court imposes a sentence
under the Sentencing Guidelines that is greater than a sentence
based solely upon facts found by the jury. Booker, 125 S. Ct. at
752-56. Rather than totally invalidating the Guidelines, however,
the Court held that the Guidelines are no longer binding on the
district courts, but are advisory only. To effectuate this remedy,
the Court severed two provisions of the Sentencing Reform Act (18
U.S.C. § 3553(b)(1), requiring sentencing courts to impose a
sentence within the guideline range, and 18 U.S.C. § 3742(e),
setting forth standards of review on appeal). Sentencing courts
are now required to consider the applicable guideline range, but
may “tailor the sentence in light of other statutory concerns
. . . .” Booker, 125 S. Ct. at 757.
In Hughes this court vacated Hughes’s sentence and
remanded for re-sentencing after concluding that the fourteen-level
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enhancement of Hughes’s offense level that was based upon facts not
admitted by Hughes or found by the jury amounted to plain error
that the court should recognize. 2005 WL 147059, at *1, 4-5. The
court directed sentencing courts to calculate the appropriate
guideline range in accordance with pre-Booker practice, consider
that range in conjunction with other relevant factors under the
guidelines and 18 U.S.C. § 3553(a) (2000), and impose a sentence.
If the district court imposes a sentence outside the guideline
range, the court should state its reasons for doing so. Hughes,
2005 WL 147059, at *3.
In this case, as in Hughes, Allen’s sentence was
determined by application of the Guidelines as a mandatory
determinant in sentencing. Moreover, the two-level enhancement for
reckless endangerment applied by the district court was based upon
facts not found by the jury, as that issue was not presented to the
jury in the indictment or by special verdict form. Finally, the
two-level enhancement affected Allen’s substantial rights, as it
resulted in a Guideline range of twenty-four to thirty months,
rather than one of eighteen to twenty-four months. It is
impossible to determine on the present record whether the district
court would have chosen to sentence Allen to twenty-four months
under either of these ranges, or would have chosen a sentence at
the bottom of the lower range and imposed eighteen months of
incarceration. We therefore conclude that the district court erred
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in determining Allen’s sentence, that the error was plain and
affected Allen’s substantial rights, and that we should exercise
our discretion to notice the error.
Accordingly, we grant Allen’s motion to expedite, affirm
his conviction, vacate the sentence imposed by the district court,
and remand for reconsideration of the sentence in accordance with
Booker and Hughes. The mandate shall issue forthwith.
AFFIRMED IN PART,
VACATED IN PART,
AND REMANDED
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