UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 03-4299
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ROBERT DAVID BECKLEY, a/k/a Robert Kyle Lynch,
Defendant - Appellant.
On Remand from the Supreme Court of the United States.
(S. Ct. No. 04-6588)
Submitted: May 13, 2005 Decided: June 20, 2005
Before WIDENER, WILKINSON, and MOTZ, Circuit Judges.
Remanded for resentencing by unpublished per curiam opinion.
Camille Michel Davidson, THE FULLER LAW FIRM, P.C., Charlotte,
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Unpublished opinions are not binding precedent in this circuit.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:
Robert Beckley was convicted, after a guilty plea, on one
count of credit card fraud. We affirmed his conviction and
sentence, and subsequently denied rehearing. See United States v.
Beckley, No. 03-4299 (4th Cir. Apr. 20, 2004) (unpublished).
Beckley filed a petition for writ of certiorari in the
United States Supreme Court. His petition was granted, and this
court’s judgment was vacated, in light of the decision in United
States v. Booker, 125 S. Ct. 738 (2005). In re Beckley, 125 S. Ct.
1045 (2005). Beckley’s case has been remanded to this court for
further proceedings. Id. He has moved for release on bail pending
further proceedings on remand from the Supreme Court.
Beckley’s sentence was imposed prior to the decisions in
Booker and its predecessor, Blakely v. Washington, 124 S. Ct. 2531
(2004), and he did not raise objections to his sentence based on
the mandatory nature of the Sentencing Guidelines or the district
court’s application of sentencing enhancements based on facts not
admitted by Beckley or found by a jury beyond a reasonable doubt.
Therefore, we review his sentence for plain error. See United
States v. Hughes, 401 F.3d 540, 546-60 (4th Cir. 2005). Beckley’s
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Guidelines range was calculated as follows:
Base offense level1 6
Intended loss of over $400,0002 + 14
Use of sophisticated means3 + 2
Adjusted offense level 22
Acceptance of responsibility4 - 3
Total offense level: 19
Criminal history category: III
Guidelines range: 37-46 months
The district court imposed a term of imprisonment of forty-four
months. If not for the enhancement based on use of sophisticated
means, a fact found by the district court (and disputed by Beckley
at sentencing), his offense level would be reduced by two levels,
resulting in a Guidelines range of 30-37 months. See USSG
§ 2B1.1(b)(8)(C). Moreover, if the district court had not enhanced
Beckley’s offense level for an amount of loss greater than the
amount he has essentially admitted – $48,058 – his offense level
would be reduced by another eight levels, for a Guidelines range of
8-14 months. See USSG § 2B1.1(b)(1)(D), (H). His forty-four month
sentence thus meets the standard for plain error that must be
1
U.S. Sentencing Guidelines Manual (USSG) § 2B1.1(a)(2) (2002
& Supp. 2003).
2
USSG § 2B1.1(b)(1)(H).
3
USSG § 2B1.1(b)(8)(C).
4
USSG § 3E1.1. The Government does not challenge the
adjustment for acceptance of responsibility.
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recognized under the reasoning set forth in Hughes.5 Accordingly,
we grant Beckley’s motion to remand for resentencing in light of
Booker.6
Finally, Beckley moves for bail pending further
proceedings on remand from the Supreme Court. Motions for bail
pending appeal are governed by 18 U.S.C. § 3143(b) (2000). See
United States v. Steinhorn, 927 F.2d 195, 196 (4th Cir. 1991). Of
particular relevance here, the court must consider whether the
appeal presents a substantial question, and whether, if that
question is decided in the defendant’s favor, the defendant is
likely to receive a sentence shorter than the sum of time served
plus the expected duration of the appeal process. 18 U.S.C.
§ 3143(b)(1)(B); see Steinhorn, 927 F.2d at 196.
5
Just as we noted in Hughes, 401 F.3d at 545 n.4, “[w]e of
course offer no criticism of the district judge, who followed the
law and procedure in effect at the time” of Beckley’s sentencing.
See generally Johnson v. United States, 520 U.S. 461, 468 (1997)
(stating that an error is “plain” if “the law at the time of trial
was settled and clearly contrary to the law at the time of
appeal”).
6
Although the 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 Hughes, 401 F.3d at 546. 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.
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The Government concedes that a substantial question
exists about whether Beckley is entitled to resentencing.
Nevertheless, the Government argues that Beckley is not entitled to
release pending appeal because he has not shown a likelihood that,
on resentencing, he will receive a sentence shorter than “the total
of the time already served plus the expected duration of the appeal
process.” 18 U.S.C. § 3143(b)(1)(B)(iv). Beckley counters that
his sentence was enhanced based on facts not charged in the
indictment or found by a jury beyond a reasonable doubt. He
contends that because he has already served three quarters of his
forty-four month sentence, his appeal may result in a shorter
sentence, and if he is not released, the Supreme Court’s intent in
vacating this court’s judgment will be frustrated.
Beckley has demonstrated a substantial question regarding
the propriety of his sentence in light of Booker and Hughes.
However, the possibility that Beckley will receive a sentence on
remand that is less than the sum of the time remaining on his
sentence and the duration of the appeal process is speculative at
best. On remand, the district court will calculate a sentencing
range in accordance with the Guidelines, although that range will
be advisory rather than mandatory. See Booker, 125 S. Ct. at 767.
Neither Beckley’s base offense level nor his criminal history
category will change. Beckley has not shown that it is as likely
as not that the district court will elect to sentence him based on
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different facts than those applied in his first sentencing
proceeding, or exercise its discretion in his favor on the same
facts.
On this record, release on bail pending further
proceedings is not warranted. We deny as moot Beckley's petition
for a writ of mandamus seeking a ruling on the bail motion.
In sum, we grant Beckley’s motion to remand this case for
resentencing in light of Booker. We deny Beckley’s motions for
release on bail pending further proceedings. We grant Beckley’s
motion to file a pro se formal brief, grant Beckley’s motion to
proceed pro se in the present appeal, and grant counsel’s motion to
withdraw from further representation.7 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.
REMANDED FOR
RESENTENCING
7
The district court may, of course, appoint counsel for
Beckley on resentencing.
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