UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 03-4937
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
DARRIN ANTHONY WRIGHT, a/k/a D, a/k/a New
York,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Terrence W. Boyle, Chief
District Judge. (CR-03-39-BO)
Argued: February 3, 2005 Decided: May 25, 2005
Before TRAXLER, GREGORY, and SHEDD, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
ARGUED: Terry F. Rose, Smithfield, North Carolina, for Appellant.
Christine Witcover Dean, Assistant United States Attorney, OFFICE
OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for
Appellee. ON BRIEF: Frank D. Whitney, United States Attorney, Anne
M. Hayes, Assistant United States Attorney, Raleigh, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Darrin Anthony Wright appeals from the district court’s
judgment sentencing him to 306 months’ imprisonment for various
firearms-related offenses. Wright contends that his sentence must
be vacated under United States v. Booker, 125 S. Ct. 738 (2005),
because the district court, treating the United States Sentencing
Guidelines as mandatory, applied certain offense-level enhancements
based on judge-found facts. For the reasons that follow, we vacate
Wright’s sentence and remand for resentencing in accordance with
Booker.
I.
Wright pled guilty to one count of conspiracy to make false
statements in connection with firearms transactions (Count One);
three counts of making a false statement in connection with the
acquisition of a firearm (Counts Two, Three, and Four); one count
of being a felon in possession of a firearm (Count Twelve); and one
count of using or carrying a firearm during and in relation to a
drug trafficking crime (Count Sixteen, or the “§ 924(c) count”).
Pursuant to the Sentencing Guidelines, the district court
grouped Counts One, Two, Three, Four, and Twelve because they
involved substantially the same harm. See U.S.S.G. § 3D1.2(d).
Because Wright had previously sustained at least two qualifying
felony convictions, the base offense level for this group of
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offenses was 24. The district court then added six levels based on
a finding that the offenses involved 25-99 firearms, see U.S.S.G.
§ 2K2.1(b)(1)(C), and another two levels based on a finding that at
least one of the firearms had been stolen or had an altered or
obliterated serial number, see id. § 2K2.1(b)(4). Although these
enhancements yielded an adjusted offense level of 32, the
Guidelines capped Wright’s adjusted offense level for these
offenses at 29. See id. The district court then added four more
levels based on a finding that Wright was a leader or organizer of
the criminal activity, see U.S.S.G. § 3B1.1(a), and subtracted
three levels for acceptance of responsibility, see id. § 3E1.1(b),
resulting in a total offense level of 30.
Based on his prior convictions for cocaine possession and
assault, assault with a deadly weapon, kidnaping and robbery, and
several traffic crimes, Wright was assigned 12 criminal history
points. The district court added two points because the instant
offenses were committed less than two years following Wright’s
release from custody. See U.S.S.G. § 4A1.1(e). With 14 criminal
history points, Wright fell in criminal history category VI.
For these grouped counts, the Guidelines range was 168-210
months. In order to produce a sentence within this range, the
district court imposed consecutive sentences. For Count One, the
district court sentenced Wright to the statutory maximum of 60
months. See 18 U.S.C. § 371. For Counts Two, Three, and Four, the
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district court sentenced Wright to the statutory maximum of 120
months. See 18 U.S.C. § 922(a)(6). For Count Twelve, the district
court sentenced Wright to an additional 30 months, yielding a total
of 210 months for the grouped counts.
Count Sixteen, the § 924(c) count, was exempted from the
grouping rules. See U.S.S.G. § 3D1.1(b). The mandatory minimum
sentence for a § 924(c) conviction is 60 months’ imprisonment. 18
U.S.C. § 924(c). The Government moved for an upward departure from
this mandatory minimum sentence on the ground that criminal history
category VI did not adequately reflect the seriousness of Wright’s
criminal history or the likelihood of recidivism. See U.S.S.G.
§ 4A1.3. Among other things, the Government relied upon the
violent nature of a 1990 carjacking offense for which Wright was
imprisoned; his record of criminal activity during the time between
his parole in 2000 and his arrest for the instant offenses in 2002;
the nature of other charged but unconvicted conduct and Wright’s
lenient treatment in other cases; and the fact that murder charges
were pending against Wright at the time of his sentencing. Wright
opposed the motion for upward departure on the grounds that the
Government’s motion was inconsistent with the plea agreement, and
a departure was not warranted in any event because his criminal
history score included three points for the 1990 carjacking and he
was innocent of the charges brought against him since his parole.
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The district court ruled that the plea agreement did not
foreclose the Government’s requesting an upward departure. The
Government then requested that the upward departure be structured
as follows:
• Start at offense level 17 and category VI (51-63
months), which encompasses the 60-months mandatory
minimum sentence required for the § 924(c) count;
• Add four levels for the grouped counts, analogizing
to the four-level enhancement for use of a firearm
in connection with another felony, see U.S.S.G.
§ 2K2.1(b)(5);
• Since this four-level adjustment produced a range
of 77-96 months, depart upward 36 months from the
60-months mandatory minimum for the § 924(c) count.
The district court accepted the Government’s proposal and imposed
a sentence of 96 months for the § 924(c) count. This appeal
followed.
II.
Wright contends that he is entitled to resentencing because
the district court imposed a sentence pursuant to mandatory
Sentencing Guidelines that was based, in part, on judge-found
facts. The Supreme Court recently held that the Sentencing
Guidelines violate the Sixth Amendment insofar as they require
sentencing courts to impose sentences based, at least in part, on
findings of fact not made by a jury. United States v. Booker, 125
S. Ct. 738, 756 (2005). Rather than invalidate the Sentencing
Guidelines in toto, the Court severed and excised the provision
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requiring sentencing courts to impose sentences within the
guidelines range, as well as the provision prescribing de novo
review of challenges involving departures from the guidelines
sentence. Id. at 764. As a result, application of the Sentencing
Guidelines is no longer mandatory, id. at 757, and courts of
appeals will review criminal sentences only for reasonableness, id.
at 767.
Since Wright did not raise this objection in the district
court, our review is for plain error. See United States v. Olano,
507 U.S. 725, 731-32 (1993); Fed. R. Crim. P. 52(b). Under this
standard of review, “[t]here must be an error that was plain and
that affects substantial rights.” Olano, 507 U.S. at 732 (internal
quotations omitted). For purposes of plain-error review, an
“error” is a “[d]eviation from a legal rule . . . unless the rule
has been waived,” id. at 732-33, and such an error is “plain” if it
is “clear” or “obvious” to the reviewing court, id. at 734.1 Even
1
To say that an error is “clear or obvious” is not to say,
however, that the district court must have ignored the applicable
law. For instance, where the applicable law changes after the
district court rules, a court of appeals will say that there was an
“error” that was “plain” even though the district court faithfully
applied the law in effect at the time of its ruling. See Johnson
v. United States, 520 U.S. 461, 468 (1997) (stating that an error
is “plain” if “the law at the time of trial was settled and clearly
contrary to the law at the time of appeal”). In such a case, a
finding of “plain error” is no comment on the correctness of the
district court’s ruling at the time it was made. See United States
v. Hughes, 401 F.3d 540, 545, n.4 (4th Cir. 2005) (stating that
“[w]e of course offer no criticism of the district judge, who
followed the law and procedure in effect at the time” of
sentencing”).
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where the court of appeals finds an error that was plain, “Rule
52(b) leaves the decision to correct the forfeited error within the
sound discretion of the court of appeals, and the court should not
exercise that discretion unless the error seriously affects the
fairness, integrity or public reputation of judicial proceedings.”
Olano, 507 U.S. at 732 (internal quotations omitted).
The district court applied Guidelines enhancements to Wright’s
base offense level for the grouped counts based on findings that
(1) the offenses involved 25-99 firearms, (2) at least one of those
firearms was stolen or had an altered or obliterated serial number,
and (3) Wright was a leader or organizer of the criminal activity.
This case is similar to United States v. Hughes, 401 F.3d 540,
(4th Cir. 2005), where we vacated a criminal sentence and remanded
for resentencing in accordance with Booker. As in Hughes, the
district court here imposed the sentence mandated by the
Guidelines, based in part upon judge-found facts. See id. at 547-
48 (concluding that application of sentencing enhancements based on
judge-found facts was “error” that was “plain”). As in Hughes, the
defendant here was sentenced to a longer term of imprisonment than
the Guidelines would have required had the district court not
considered that fact. See id. at 548-49 (concluding that
imposition of a sentence in excess of the maximum sentence
permitted by the jury’s verdict affected the defendant’s
substantial rights). Consistent with Hughes, we conclude that the
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district court committed an error that was plain and that affects
Wright’s substantial rights, and we exercise our discretion to
notice the error.2 See id. at 555-56. Accordingly, we vacate the
judgment and remand this case for resentencing in accordance with
Booker.3
VACATED AND REMANDED
2
We reject the Government’s contention that Booker has no
application where a defendant’s sentence is increased by an upward
departure rather than an offense-level enhancement. Although
departures are discretionary, a sentencing court’s exercise of
discretion is limited by the Guidelines. Thus, the Court in Booker
characterized the entire Guidelines scheme as mandatory, despite
the fact that it allows for limited exercise of discretion. 125 S.
Ct. at 750 (“The Guidelines as written . . . are not advisory; they
are mandatory and binding on all judges. . . . The availability of
a departure in specified circumstances does not avoid the
constitutional issue. . . .”). The Court did not distinguish
certain applications of the Guidelines from others, and neither do
we.
3
We express no opinion concerning the manner in which the
district court calculated Wright’s sentence under the Guidelines.
Although the Guidelines are no longer mandatory, Booker makes clear
that a sentencing court must still “consult [the] Guidelines and
take them into account when sentencing.” 125 S. Ct. at 767. On
remand, the district court should first determine the appropriate
sentencing range under the Guidelines, making all factual findings
appropriate for that determination. Hughes, 401 F.3d at 546. The
court should consider this sentencing range along with the other
factors described in 18 U.S.C. § 3553(a), and then impose a
sentence. Id. If that sentence falls outside the Guidelines
range, the court should explain its reasons for the departure, as
required by 18 U.S.C. § 3553(c)(2). Id. The sentence must be
“within the statutorily prescribed range and . . . reasonable.”
Hughes, 401 F.3d at 547.
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