UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4080
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
QUENTIN ORLANDO RUTLAND,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Statesville. Richard L. Voorhees,
District Judge. (CR-02-31)
Submitted: May 20, 2005 Decided: June 3, 2005
Before TRAXLER, GREGORY, and SHEDD, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
Andrew B. Banzhoff, Asheville, North Carolina, for Appellant.
Gretchen C. F. Shappert, United States Attorney, D. Scott Broyles,
Assistant United States Attorney, Charlotte, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Quentin Orlando Rutland was convicted after a jury trial
of one count of conspiracy to possess with intent to distribute
fifty grams or more of cocaine base and one count of possession
with intent to distribute in violation of 21 U.S.C. §§ 841(a)(1),
841(b), 846 (2000). He was sentenced to 235 months in prison and
five years of supervised release. Rutland appeals, claiming his
sentence was imposed in violation of United States v. Booker, 125
S. Ct. 738 (2005). We vacate his sentence and remand for
resentencing.
Because Rutland raised his Booker challenge for the first
time on appeal, we review for plain error. See United States v.
Hughes, 401 F.3d 540, 547 (4th Cir. 2005). As set forth in United
States v. Olano, 507 U.S. 725, 732 (1993), plain error is present
if: (1) there was error; (2) it was plain; and (3) it affected the
defendant’s substantial rights. If these conditions are met, we
may then exercise our discretion to notice the error, but only if
it “seriously affects the fairness, integrity or public reputation
of judicial proceedings.” Id. (internal quotation marks and
alterations omitted). We find plain error under Olano in regard to
Rutland’s sentence.
First, the prison term imposed on Rutland constituted
error under Booker. See 125 S. Ct. at 755-56 (holding Sixth
Amendment contravened when sentencing court, acting pursuant to
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Guidelines, imposes sentence greater than maximum authorized by
facts found by jury alone). Under the then-mandatory Guidelines
regime, the jury verdict finding Rutland guilty of conspiracy to
distribute fifty grams or more of cocaine base supported an offense
level of 32, which together with his category III criminal history,
resulted in a sentencing range of 151-188 months in prison.
However, the court’s findings that Rutland was responsible for 240
grams of cocaine base and that he obstructed justice, increased the
offense level to 36, yielding a sentencing range of 235-298 months.
Pursuant to Booker, the court erred in relying on its own
fact-finding to impose a sentence of more than 188 months.* See
Hughes, 401 F.3d at 547 (recognizing that imposition of a sentence
“in part based on facts found by the judge . . . constituted
error”).
Second, although Rutland’s Sixth Amendment contention was
foreclosed by our precedent at the time of his sentencing, Booker
has since “abrogated our previously settled law,” rendering the
error plain. Hughes, 401 F.3d at 548. Third, the error was
prejudicial, in that Rutland’s 235-month sentence was greater than
*
Just as we noted in Hughes, 401 F.3d at 545 n.4, “[w]e of
course offer no criticism of the district judge, who followed the
law and procedure in effect at the time” of Rutland’s sentencing.
See generally 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”).
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the 188-month maximum authorized by the facts found by the jury
alone. Id. at 548-49.
Finally, to affirm Rutland’s sentence despite the error would
seriously affect the fairness, integrity, or public reputation of
these judicial proceedings. In the wake of Booker, the Guidelines
are to be treated as advisory (rather than mandatory), and
sentences that fall within the statutorily prescribed range are
reviewable only for reasonableness. Id. at 546 (citing Booker, 125
S. Ct. at 765-68). The record before us does not indicate what
sentence the court would have imposed on Rutland had it exercised
discretion under 18 U.S.C. § 3553(a) and treated the Guidelines as
merely advisory. Although it is possible that Rutland will receive
the same sentence on remand, “[t]his possibility is not enough to
dissuade us from noticing the error.” Hughes, 401 F.3d at 556. We
therefore vacate Rutland’s sentence and remand for resentencing
consistent with Booker and its progeny. 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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