UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-5086
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
TOMMY RAY MULLINS, JR.,
Defendant - Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Beckley. David A. Faber, Chief
District Judge. (CR-04-128)
Submitted: April 15, 2005 Decided: May 27, 2005
Before WILKINSON, LUTTIG, and GREGORY, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
Mary Lou Newberger, Federal Public Defender, Jonathan D. Byrne,
Appellate Counsel, David R. Bungard, Assistant Federal Public
Defender, Charleston, West Virginia, for Appellant. Kasey Warner,
United States Attorney, W. Chad Noel, Assistant United States
Attorney, Charleston, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Tommy Ray Mullins, Jr., pled guilty to conspiracy to
manufacture methamphetamine and was sentenced to a term of 120
months imprisonment. At the sentencing hearing, Mullins objected
to the district court’s consideration of certain relevant conduct*
and his criminal history in determining his sentence, arguing that
Blakely v. Washington, 124 S. Ct. 2531 (2004), applied to the
federal sentencing guidelines. The district court overruled his
objections, relying on United States v. Hammoud, 381 F.3d 316 (4th
Cir. 2004), vacated, 125 S. Ct. 1051 (2005). Mullins appeals his
sentence, alleging that, in light of the Supreme Court’s subsequent
decision in Booker v. United States, 125 S. Ct. 738 (2005), his
sentence violates the Sixth Amendment and that the district court
erred in applying the guidelines as mandatory. He argues that his
sentence should be vacated and his case remanded for resentencing
in accord with Booker.
In Booker, the Supreme Court held that the mandatory
manner in which the federal sentencing guidelines required courts
to impose sentencing enhancements based on facts found by the
court, by a preponderance of the evidence, violated the Sixth
Amendment. 125 S. Ct. at 746, 750 (Stevens, J., opinion of the
*
Mullins objected to the recommendation in the presentence
report that he was responsible for ninety grams of methamphetamine
and that his conduct created a substantial risk of harm to the life
of a minor.
- 2 -
Court). The Court remedied the constitutional violation by
severing two statutory provisions, 18 U.S.C.A. § 3553(b)(1) (West
Supp. 2004) (requiring sentencing courts to impose a sentence
within the applicable guideline range), and 18 U.S.C.A. § 3742(e)
(West 2000 & Supp. 2004) (setting forth appellate standards of
review for guideline issues), thereby making the guidelines
advisory. Booker, 125 S. Ct. at 756-57 (Breyer, J., opinion of the
Court). The government states in its appellate brief that it does
not oppose Mullins’ request for resentencing.
We therefore vacate the sentence imposed by the district
court and remand for resentencing consistent with Booker. 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.
VACATED AND REMANDED
- 3 -