UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4084
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
DEMETRIUS DAVIS,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. Benson Everett Legg, Chief District Judge.
(CR-97-248-L)
Submitted: May 11, 2005 Decided: May 26, 2005
Before MOTZ, TRAXLER, and KING, Circuit Judges.
Affirmed in part, vacated in part, and remanded by unpublished per
curiam opinion.
Michael D. Montemarano, MICHAEL D. MONTEMARANO, P.A., Elkridge,
Maryland, for Appellant. Thomas M. DiBiagio, United States
Attorney, Christine Manuelian, Assistant United States Attorney,
Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Demetrius Davis pled guilty, without the benefit of a
plea agreement, to an indictment charging him with conspiring to
distribute and to possess with intent to distribute “a quantity” of
cocaine and cocaine base (“crack”) and three substantive counts of
distributing a total of fifty-five grams of crack cocaine, 21
U.S.C. §§ 841(a)(1), 846 (2000). The court sentenced Davis to 210
months imprisonment. He has timely appealed.
At Davis’ sentencing, the district court found, by a
preponderance of the evidence--and over Davis’ objection--that he
was responsible for 1.5 kilograms of crack cocaine and adopted the
presentence report’s recommendation that Davis’ sentence be
enhanced by two levels for possession of a firearm. U.S.
Sentencing Guidelines Manual § 2D1.1(b)(1) (2000). Davis objected
to both sentencing enhancements based on the Supreme Court’s
decision in Apprendi v. New Jersey, 530 U.S. 466 (2000), the
precursor to Blakely v. Washington, ___U.S.___, 124 S. Ct. 2531
(2004), and United States v. Booker,___U.S.___, 125 S. Ct. 738
(2005).
On appeal, Davis contends that his sentence violates the
rules announced in both Blakely and Booker, which were decided
while his direct appeal was pending. In Booker, the Supreme Court
held that the federal sentencing guidelines scheme, under which
courts were required to impose sentencing enhancements based on
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facts found by the court by a preponderance of the evidence,
violated the Sixth Amendment because of its mandatory nature. Id.
at 746, 750 (Stevens, J., opinion of the Court). The Court
remedied the constitutional violation by making the guidelines
advisory through the removal of two statutory provisions that had
rendered them mandatory. Id. at 746, 756-57 (Breyer, J., opinion
of the Court).
In light of Booker, we find that the district court erred
in sentencing Davis. We of course offer no criticism of the
district judge, who followed the law and procedure in effect at the
time of Davis’ sentencing. Accordingly, although we affirm Davis’
conviction, we vacate his sentence and remand for proceedings
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.
AFFIRMED IN PART,
VACATED IN PART, AND REMANDED
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