UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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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