UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4807
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
WILLIE LEE DUMAS, JR.,
Defendant - Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Beckley. Joseph Robert Goodwin,
District Judge. (CR-04-54)
Submitted: May 13, 2005 Decided: June 3, 3005
Before LUTTIG, WILLIAMS, and DUNCAN, Circuit Judges.
Affirmed in part, vacated in part, and remanded by unpublished per
curiam opinion.
Mary Lou Newberger, Federal Public Defender, Jonathan D. Byrne,
Appellate Counsel, George H. Lancaster, Jr., Assistant Federal
Public Defender, Charleston, West Virginia, for Appellant. Charles
T. Miller, Acting United States Attorney, Miller A. Bushong III,
Assistant United States Attorney, Beckley, West Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Willie Lee Dumas, Jr. pled guilty to one count of armed
robbery in violation of 18 U.S.C. § 2113(a),(d) (2000) and the use
of a “deadly weapon” in the commission of that offense. Dumas was
sentenced based on a base offense level of twenty-four, pursuant to
the United States Sentencing Guidelines Manual (“USSG”) § 2D3.1(2)
(2003), enhanced two levels under USSG § 2B3.1(b)(1) because
property of a financial institution was taken, and enhanced five
levels under USSG § 2B3.1(b)(2)(C) because a firearm was brandished
or possessed during the offense. Citing Blakely v. Washington, 124
S. Ct. 2531 (2004), Dumas objected on the basis that he should
only have been subject to a three-level guideline enhancement for
use of a deadly weapon, see USSG § 2B3.1(b)(2)(E)), not a five-
level enhancement for use of a firearm, because the facts
underlying the five-level enhancement were not found by a jury and
because Dumas pled guilty only to an unspecified “dangerous
weapon.”
We agree with Dumas that the district court erred in
imposing a sentence based on facts not found by a jury or admitted
by Dumas, in violation of the Sixth Amendment. See United States
v. Booker, 125 S. Ct. 738, 756 (2005).1 However, we reject Dumas’
1
Just as we noted in United States v. Hughes, 401 F.3d 540,
545 n.4 (4th Cir. 2005), “we of course offer no criticism of the
district judge, who followed the law and procedure in effect at the
time” of Dumas’ sentencing.
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contention that Blakely deprived the district court of the
authority to impose a term of supervised release.
In view of the Supreme Court’s holding in Booker, and
because Dumas does not challenge the validity of his conviction, we
therefore affirm the conviction, vacate the sentence and remand for
resentencing.2 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
2
Although the sentencing 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.
See Hughes, 401 F.3d at 546 (applying Booker on plain error
review). 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) (2000). Id. The
sentence must be “within the statutorily prescribed range and . . .
reasonable.” Id. at 546-47.
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