UNPUBLISHED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by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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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