ON REHEARING
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4035
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
MICHAEL BERNARD MURRY,
Defendant - Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Huntington. Robert C. Chambers,
District Judge. (CR-03-128)
Submitted: April 6, 2005 Decided: June 2, 2005
Before NIEMEYER, MOTZ, and DUNCAN, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
Mary Lou Newberger, Federal Public Defender, Edward H. Weis,
Assistant Federal Public Defender, Charleston, West Virginia, for
Appellant. Kasey Warner, United States Attorney, Stephanie L.
Haines, Assistant United States Attorney, Huntington, West
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Michael Bernard Murry pled guilty to possession of a
firearm by a convicted felon, in violation of 18 U.S.C.
§§ 922(g)(1) and 924(a)(2) (2000). The district court sentenced
him to sixty-five months in prison. Murry appealed his sentence,
challenging the district court’s decision to enhance his sentence
under U.S. Sentencing Guidelines Manual § 2K2.1(b)(5) (2002), on
the ground that he possessed a firearm in connection with another
felony offense. Initially, we affirmed Murry’s sentence. Before
the mandate issued, however, Murry filed a petition for panel
rehearing based on Blakely v. Washington, 124 S. Ct. 2531, 2537
(2004) (holding that maximum sentence court can impose must be
based solely on facts “reflected in the jury verdict or admitted by
the defendant”), and in anticipation of the Supreme Court’s
decision in United States v. Booker, 125 S. Ct. 738 (2005), which
was argued in the Supreme Court the same day this court issued its
original opinion in this case. Because Booker constitutes an
intervening change in law bearing on the outcome of this appeal, we
grant rehearing, vacate Murry’s sentence, and remand for
resentencing.
Murry’s sentence included an enhancement under USSG
§ 2K2.1(b)(5) based on the court’s findings at sentencing that
Murry possessed the firearm in connection with another felony. In
Booker, the Supreme Court held that the federal sentencing
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guidelines scheme, under which courts were required to impose
sentencing enhancements based on facts found by the court by a
preponderance of the evidence, violated the Sixth Amendment because
of its mandatory nature. Id. at 746 (Stevens, J., opinion of the
Court). Although Murry did not raise the Sixth Amendment challenge
at sentencing, this court has held that a mandatory enhancement
based on facts supported by a preponderance of the evidence
constitutes plain error warranting correction. United States v.
Hughes, 401 F.3d 540, 546-48 (4th Cir. 2005).
In light of Booker and Hughes, we find that the district
court plainly erred in sentencing Murry and that the error warrants
correction. Therefore, we vacate Murry’s sentence and remand for
proceedings consistent with Hughes. 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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