United States v. Hardnett

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 04-4133

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

ALEXANDER JAMES HARDNETT, a/k/a Alex,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. James R. Spencer, District
Judge. (CR-03-212)

Submitted: February 2, 2005 Decided: March 3, 2005

Before TRAXLER and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.

Affirmed in part, vacated in part, and remanded with instructions
by unpublished per curiam opinion.

Dwight E. Crawley, LAW OFFICE OF DWIGHT E. CRAWLEY, Hopewell,
Virginia, for Appellant. Paul Joseph McNulty, United States
Attorney, Alexandria, Virginia; Sara Elizabeth Flannery, OFFICE OF
THE UNITED STATES ATTORNEY, Richmond, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

Alexander James Hardnett was convicted after a bench

trial of one count of conspiracy to possess with intent to

distribute fifty grams or more of cocaine base and one count of

distribution of cocaine and aiding and abetting such distribution.

Hardnett’s counsel has filed a brief pursuant to Anders v.

California, 386 U.S. 738 (1967), asserting there are no meritorious

issues, however raising several issues for review. Hardnett has

filed a pro se supplemental brief in which he raises issues

contained in counsel’s brief and other issues. While we affirm the

convictions, we vacate the sentence and remand for resentencing.

We find the district court did not abuse its discretion

denying the motions to substitute counsel. United States v.

Corporan-Cuevas, 35 F.3d 953, 956 (4th Cir. 1994). We further find

no error in the court’s decision not to preclude the testimony of

three witnesses. Hardnett’s challenge to the court’s credibility

findings must fail. United States v. Hobbs, 136 F.3d 384, 390 n.11

(4th Cir. 1998). We further find no error because the court did

not review the grand jury transcript. Similarly, we find no

prosecutorial misconduct. There was no error in the court’s

decision to admit evidence of cocaine that was stored in a law

enforcement officer’s evidence locker. There is no evidence the

chain of custody was broken or that the evidence was tampered with.

Hardnett’s claim that he should have been given a reason as to why

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a different judge was assigned to his trial and an opportunity to

reconsider his decision to have a bench trial is without merit.

There is no evidence of an unnecessary delay prior to having

Hardnett be arraigned before a magistrate judge. Moreover,

Hardnett cannot show he was prejudiced by the delay.

At sentencing, the district court made factual findings

with respect to the drug amount, possession of a firearm,

obstruction of justice and Hardnett’s supervisory role in the

conspiracy. These findings increased the offense level from 32

(based on the conviction for conspiracy to distribute 50 grams or

more of crack cocaine) and mandated a life sentence. Without the

enhancements, Hardnett would not have faced a mandatory life

sentence under the guidelines. The statutory term of imprisonment

for the conspiracy charge was twenty years’ imprisonment to life

imprisonment.

We find Hardnett’s sentence was in violation of the rule

announced in United States v. Booker, 125 S. Ct. 738, 2005 WL 50108

(2005). Booker held that the “Sixth Amendment is violated when a

district court, acting pursuant to the Sentencing Reform Act and

the guidelines, imposes a sentence greater than the maximum

authorized by the facts found by the jury alone.” United States v.

Hughes, __ F.3d __, 2005 WL 147059, *3 (4th Cir. Jan. 24, 2005).

In Booker, the Supreme Court severed and excised two provisions of

the Sentencing Reform Act: 18 U.S.C. § 3553(b)(1), requiring

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sentencing courts to impose a sentence within the guideline range,

and 18 U.S.C. § 3742(e), setting forth standards of review on

appeal. The Court held that the remainder of the guidelines remain

as advisory, requiring a sentencing court to consider applicable

guidelines ranges, but allowing the court to “tailor the sentence

in light of other statutory concerns . . . .” Booker, 2005 WL

50108, at *38.

In Hughes, we found Hughes’ sentence exceeded the maximum

sentence authorized by the facts found by the jury alone, in

violation of Booker. Hughes, 2005 WL 147059, at *4. Hughes raised

the issue for the first time on appeal and review was for plain

error. Id. Under plain error review, we found there was error,

the error was plain, and the error affected Hughes’ substantial

rights. Id. at *4-5. We recognized the error because “to leave

standing this sentence imposed under the mandatory guideline

regime, we have no doubt, is to place in jeopardy the fairness,

integrity or public reputation of judicial proceedings.” Id. at *5

(internal quotation marks omitted).

Although neither counsel nor Hardnett raised this issue

on appeal, under the dictates of Anders we must review the record

for any meritorious issues. Based on our review of the imposition

of the sentence, we find plain error and must vacate the sentence

and remand to the district court for resentencing consistent with

the rules announced in Booker and Hughes.

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 Because the sentencing guidelines remain in place in an

advisory capacity, we have reviewed the enhancements. We find no

error with respect to the enhancements for drug quantity,

possession of a firearm or Hardnett’s role in the offense. With

respect to the enhancement for obstruction of justice, we find any

error harmless as it has no bearing on the sentence recommended by

the sentencing guidelines.

In accordance with the requirements of Anders, we have

reviewed the entire record in this case. We affirm the

convictions. We vacate the sentence and remand for resentencing

consistent with the rules and instructions announced in Booker and

Hughes. 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 IN PART, VACATED IN PART,
AND REMANDED WITH INSTRUCTIONS

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