UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4416
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
MARK ASTOR PRICE,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. Frank W. Bullock, Jr.,
District Judge. (CR-03-326)
Submitted: May 27, 2005 Decided: June 15, 2005
Before WILKINSON and WILLIAMS, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Louis C. Allen III, Federal Public Defender, Eric D. Placke,
Assistant Federal Public Defender, Greensboro, North Carolina, for
Appellant. Anna Mills Wagoner, United States Attorney, Robert M.
Hamilton, Assistant United States Attorney, Greensboro, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Mark Astor Price pled guilty to failure to pay child
support for over two years in the amount of at least $10,000, 18
U.S.C. § 228(a)(3) (2000), and was sentenced to a term of thirteen
months imprisonment. Price has appealed his sentence, contending
that the ten-level enhancement he received for the amount of loss,
U.S. Sentencing Guidelines Manual § 2B1.1 (2001),1 resulted in a
sentence that exceeded the maximum sentence permissible based on
facts admitted by the defendant, in violation of the rule set out
in Blakely v. Washington, 124 S. Ct. 2531 (2004). We affirm.
In United States v. Booker, 125 S. Ct. 738 (2005), the
Supreme Court, applying Blakely, held that the federal sentencing
guidelines, 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 their
mandatory nature. Id. at 746, 750 (Stevens, J., opinion of the
Court). The Court remedied the constitutional violation by making
the guidelines advisory through the removal of two statutory
provisions that had rendered them mandatory. Id. at 746 (Stevens,
J., opinion of the Court); id. at 756-57 (Breyer, J., opinion of
1
The guideline applicable to a violation of 18 U.S.C. § 228 is
USSG § 2J1.1. Application Note 2 to § 2J1.1 directs that, “[f]or
offenses involving the willful failure to pay child support
(violations of 18 U.S.C. § 228), the most analogous guideline is
§ 2B1.1 (Theft, Property Destruction, and Fraud). The amount of
loss is the amount of child support that the defendant willfully
failed to pay.”
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the Court). Although Price did not raise a Sixth Amendment
challenge at sentencing, this court has held that a mandatory
enhancement based on judicial factfinding supported by a
preponderance of the evidence constitutes plain error warranting
correction when the sentence “exceeded the maximum allowed based on
the facts found by the jury alone” or admitted by the defendant and
the record does not disclose what discretionary sentence the
district court would have imposed under an advisory guideline
scheme. United States v. Hughes, 401 F.3d 540, 547-49 (4th Cir.
2005) (citing United States v. Olano, 507 U.S. 725, 731-32 (1993)).
Price’s sentence was enhanced by ten levels for a loss of
$187,680.30 under § 2B1.1(b)(1)(F). Price argues that the
arrearage of $187,680.30 was not charged in the indictment and that
he did not admit that amount. He contends that the ten-level
enhancement was therefore a violation of the rule set out in
Blakely. However, Price did not contest the calculation of the
offense level and agreed at sentencing that his offense level was
correctly calculated based on the amount of child support ordered
in 1994 by the state court. He thus admitted the fact on which the
enhancement was based. No Sixth Amendment violation occurred, and
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resentencing is not required.2 United States v. Hughes, 401 F.3d
at 547.
We therefore affirm the sentence imposed by the district
court. 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
2
Price does not contend that the district court erred in
sentencing him by applying the guidelines as a mandatory sentencing
scheme. Nor has he made an attempt to show that the error affected
his substantial rights, i.e., “whether the error that occurred
affected the sentence that was actually imposed.” United States v.
White, 405 F.3d 208, 223 n.10 (4th Cir. 2005) (citing Hughes, 401
F.3d at 551); see also Olano, 507 U.S. at 734-35 (under plain error
test, defendant bears burden of proving that error affected
substantial rights).
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