UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4717
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
BARRY DUANE JOHNSON,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. William L. Osteen, District
Judge. (CR-03-423)
Submitted: May 20, 2005 Decided: June 13, 2005
Before WILLIAMS and KING, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed in part, vacated in part, and remanded for resentencing by
unpublished per curiam opinion.
Louis C. Allen, III, Federal Public Defender, William S. Trivette,
Assistant Federal Public Defender, Greensboro, North Carolina, for
Appellant. Anna Mills Wagoner, United States Attorney, Michael F.
Joseph, 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Unpublished opinions are not binding precedent in this circuit.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:
Barry Duane Johnson appeals from his conviction and
sentence following a guilty plea of being a felon in possession of
a firearm in violation of 18 U.S.C. §§ 922(g), 924(a)(2) (2000).
Johnson argues the district court erred when it denied
his motion to suppress. We review the denial of a motion to
suppress evidence de novo. United States v. Hamlin, 319 F.3d 666,
671 (4th Cir. 2003). We review the district court’s findings of
fact for clear error, viewing the evidence in the light most
favorable to the Government. Id. Because we conclude reasonable
suspicion existed to stop Johnson’s vehicle for illegal window
tinting, we affirm Johnson’s conviction.
Johnson next argues that his sentence violated his Sixth
Amendment right to a jury trial as determined in Blakely v.
Washington, 124 S. Ct. 2531 (2004). Johnson preserved this issue
at sentencing. Although we conclude the district court did not err
when it calculated Johnson’s criminal history category, or when it
found that one of Johnson’s prior convictions was a crime of
violence, we conclude the court’s finding that Johnson’s firearm
was stolen violates the mandate that “[o]ther than the fact of a
prior conviction, any fact that increases the penalty for a crime
beyond the prescribed statutory maximum must be submitted to a
jury, and proved beyond a reasonable doubt.” United States v.
Booker, 125 S. Ct. 738, 748 (2005) (quoting Apprendi v. New Jersey,
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530 U.S. 466, 490 (2000)).* We accordingly vacate Johnson’s
sentence and remand for resentencing consistent with Booker.
Although the United States 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 United States v. Hughes, 401 F.3d 540, 546 (4th
Cir. 2005). The court should consider this sentencing range along
with the other factors described in 18 U.S.C. § 3553(a) (2000), 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.
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 FOR RESENTENCING
1
Just as we noted in United States v. Hughes, 401 F.3d 540,
545 n.4 (4th Cir. 2005), “[w]e of course offer no criticism of the
district judge, who followed the law and procedure in effect at the
time” of Johnson’s sentencing.
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