UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4952
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JERRY LEE DELK,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Newport News. Jerome B. Friedman,
District Judge. (CR-03-143)
Submitted: April 20, 2005 Decided: May 26, 2005
Before LUTTIG, GREGORY, and SHEDD, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
Keith Loren Kimball, COLGAN, KIMBALL & CARNES, Virginia Beach,
Virginia, for Appellant. Paul J. McNulty, United States Attorney,
Michael J. Elston, Assistant United States Attorney, Fernando
Groene, Assistant United States Attorney, Newport News, Virginia,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Jerry Lee Delk appeals his sentence of twenty-seven
months of imprisonment after his guilty plea to one count of
distribution of .17 grams of cocaine base, in violation of 21
U.S.C.A. § 841(a)(1), (b)(1)(C) (West 1999 & Supp. 2004).
Delk first argues that his sentence is unconstitutional
based upon the Supreme Court’s decision in Blakely v. Washington,
124 S. Ct. 2531 (2004). Delk asserts that he could only be held
responsible for the quantity of cocaine base specified in the
indictment, rather than the greater quantity attributed to him as
relevant conduct in the presentence report. The district court
overruled Delk’s Blakely objection and applied the guidelines in
accordance with this court’s direction in United States v. Hammoud,
378 F.3d 426 (4th Cir. 2004) (order), opinion issued by 381 F.3d
316 (4th Cir. 2004) (en banc), vacated, 125 S. Ct. 1051 (2005).
The district court did not, however, specify an alternative
sentence as suggested in Hammoud.
In United States v. Booker, 125 S. Ct. 738 (2005), the
Supreme Court applied Blakely’s rationale to the federal sentencing
guidelines. After severing 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), the Court held that
the guidelines remain as advisory only. Sentencing courts are now
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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 this case, as in Booker, Delk’s
sentence was determined by application of the guidelines as a
mandatory determinant in sentencing. It is impossible to determine
on the present record whether the district court would have chosen
to sentence Delk to the same or a lesser term of imprisonment in
the exercise of its discretion if the guidelines were merely
advisory.
Delk also asserts that his sentence is illegal because
the provision of § 3E1.1(b) of the guidelines that requires a
Government motion for a defendant to receive an additional offense
level reduction for acceptance of responsibility violates the
separation of powers doctrine. We find this argument to be without
merit. Mistretta v. United States, 488 U.S. 361, 380-85, 412
(1989).
We therefore vacate the sentence imposed by the district
court and remand for reconsideration of the sentence in accordance
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
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