United States v. McCullough

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 05-4145

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

WAYNE EUGENE MCCULLOUGH,

Defendant - Appellant.

Appeal from the United States District Court for the District of
South Carolina, at Greenville. G. Ross Anderson, Jr., District
Judge. (CR-04-630)

Submitted: May 31, 2005 Decided: June 9, 2005

Before WILKINSON, WILLIAMS, and DUNCAN, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Benjamin T. Stepp, Assistant Federal Public Defender, Greenville,
South Carolina, for Appellant. Jonathan S. Gasser, Acting United
States Attorney, E. Jean Howard, Assistant United States Attorney,
Greenville, South Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

Wayne Eugene McCullough pled guilty without the benefit

of a plea agreement to two counts of bank robbery by force or

violence in violation of 18 U.S.C. § 2113(a) (2000). At

sentencing, the district court imposed a sentence of 51 months’

imprisonment, treating the sentencing guidelines as mandatory. The

court also imposed an alternate sentence “in accordance with the

ruling of the Fourth Circuit Court of Appeals on August 2nd, 2004,

and in the event the U.S. Sentencing Guidelines are found to be

non-binding on the sentencing courts.”1 (Joint Appendix at 14).

The court stated the alternate sentence was the same 51 months’

imprisonment. On appeal, McCullough contends the sentence should

be vacated and remanded because the court did not have the benefit

of United States v. Booker, 125 S. Ct. 738 (2005), when it imposed

an alternate sentence.2 Because McCullough did not object at

sentencing to the mandatory use of the sentencing guidelines,

review is for plain error. United States v. Hughes, 401 F.3d 540,

547 (4th Cir. 2005). Finding no reversible error, we affirm.

However, the alternate sentence imposed by the district

court treating the guidelines as advisory did not violate the Sixth

1
The district court was citing the order issued in United
States v. Hammoud, 378 F.3d 426 (4th Cir. 2004), opinion issued by,
United States v. Hammoud, 381 F.3d 316 (4th Cir. 2004), cert.
granted, judgment vacated, 125 S. Ct. 1051 (2005).
2
McCullough does not challenge either of his convictions. He
only raises the sentencing issue.

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Amendment. Booker, 125 S. Ct. at 769; see also Hughes, 401 F.3d

at 553 (noting that treating the guidelines as mandatory is a

separate Booker error). McCullough argues the sentence was

substantially swayed by the constraints of the mandatory sentencing

guidelines. He argues that resentencing is required despite the

alternative sentence because it was imposed without benefit of

Booker and Hughes. McCullough further states there is no

indication what sentence would have been imposed had the court

exercised its discretion under § 3553(a) and treated the guidelines

as advisory.

Booker states that, in reviewing sentences that do not

involve a Sixth Amendment violation, appellate courts may apply the

plain error and harmless error doctrine in determining whether

resentencing is required. Booker, 125 S. Ct. at 769; see Fed. R.

Crim. P. 52(a) (appellate court may disregard any error that does

not affect substantial rights). The harmless error standard

permits an error at sentencing to be disregarded if the reviewing

court is certain that any such error “did not affect the district

court’s selection of the sentence imposed.” Williams v. United

States, 503 U.S. 193, 203 (1992). Here, because the district court

imposed an alternative discretionary sentence pursuant to 18 U.S.C.

§ 3553, as authorized by Hammoud, that was identical to the

guideline sentence, the error inherent in the application of the

guidelines as mandatory did not affect the court’s ultimate

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determination of the sentence. Because McCullough cannot show

prejudice in using the guidelines as mandatory, there is no

reversible error.

Accordingly, we affirm the convictions and sentence. 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

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