UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4447
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
THOMAS LAMONT WATSON,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. James R. Spencer, District
Judge. (CR-03-216)
Submitted: May 25, 2005 Decided: June 30, 2005
Before WILKINSON, WILLIAMS, and KING, Circuit Judges.
Affirmed in part, vacated in part, and remanded by unpublished per
curiam opinion.
Frank W. Dunham, Jr., Federal Public Defender, Michael S.
Nachmanoff, Assistant Federal Public Defender, Frances H. Pratt,
Research and Writing Attorney, Alexandria, Virginia, for Appellant.
Paul J. McNulty, United States Attorney, Michael J. Elston,
Charles E. James, Jr., Assistant United States Attorneys, Richmond,
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Following a jury trial, Thomas Lamont Watson was
convicted on one count of conspiracy to distribute controlled
substances, in violation of 21 U.S.C. §§ 841 and 846 (2000), and
two counts of using a communication facility in the commission of
a felony and aiding and abetting such conduct, in violation of 21
U.S.C. § 843(b) (2000) and 18 U.S.C. § 2 (2000). The district
court sentenced Watson under the Federal Sentencing Guidelines to
135 months in prison. Citing Blakely v. Washington, 124 S. Ct.
2531 (2004), and United States v. Booker, 125 S. Ct. 738 (2005),
Watson asserts that his sentence is unconstitutional. We affirm
Watson’s conviction, vacate his sentence, and remand for
resentencing.
Watson contends that his sentence is unconstitutional in
light of Blakely. Because he did not raise this issue in the
district court, his claim is reviewed for plain error. Fed. R.
Crim. P. 52(b); United States v. Hughes, 401 F.3d 540, 547 (4th
Cir. 2005). To demonstrate plain error, a defendant must establish
that error occurred, that it was plain, and that it affected his
substantial rights. Id. at 547-48. If the defendant establishes
these requirements, the court may exercise its discretion to notice
the error “only when failure to do so would result in a miscarriage
of justice, such as when the defendant is actually innocent or the
error seriously affects the fairness, integrity or public
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reputation of judicial proceedings.” Id. at 555 (internal
quotation marks and citation omitted).
In Booker, the Supreme Court held that the mandatory
manner in which the Federal Sentencing Guidelines required courts
to impose sentencing enhancements based on facts found by the court
by a preponderance of the evidence violated the Sixth Amendment.
125 S.Ct. 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 756-67 (Breyer, J., opinion of the Court).
Here, the district court sentenced Watson under the
mandatory Federal Sentencing Guidelines and sentenced him based on
drug quantities found by a preponderance of the evidence.
Specifically, the jury found that Watson was responsible for five
to forty-nine grams of crack cocaine and less than five hundred
grams of powder cocaine, but did not make specific findings
regarding the precise drug quantities within these ranges. The
court then attributed to Watson “49 grams” of crack cocaine and
“500 grams” of powder cocaine. (J.A. 524). This resulted in a
base offense level of 32. See U.S. Sentencing Guidelines Manual
§ 2D1.1(a)(3), (c)(4) (2003). Because the jury verdict had
attributed “less than” five hundred grams to Watson, the five
hundred grams of powder cocaine quantity attributed to him in the
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Presentence Report (“PSR”) and adopted by the district court at
sentencing was outside the range authorized by the jury verdict.
Furthermore, this seemingly small difference is significant,
because five hundred grams represents the demarcation line between
quantities carrying different base offense levels for sentencing
purposes.1 See USSG § 2D1.1(c)(7), (8). Finally, the wide range
of drug quantity lumped together by the verdict form encompassed
several smaller quantity ranges, which are assigned increasingly
high base offense levels by the Guidelines. See USSG §
2D1.1(c)(8)-(14). As a result, in light of Booker and Hughes, we
find that the district court plainly erred in sentencing Watson and
the error warrants correction.2 We therefore vacate the sentence
and remand to the district court for resentencing.3
For the reasons stated, although we affirm Watson’s
convictions, we vacate his sentence and remand for resentencing
1
The PSR converted these drug quantities into a single
aggregate marihuana quantity, as the Guidelines direct. See USSG
§ 2D1.1, comment. (n.10). Because the conversion calculations are
not included in the PSR, it is unclear whether “five hundred grams”
or “less than five hundred grams” was actually used in making those
calculations. The PSR, however, unambiguously purported to use
“500 grams.” (J.A. 524).
2
Just as we noted in Hughes, “[w]e of course offer no
criticism of the district judge, who followed the law and procedure
in effect at the time” of Watson’s sentencing. 401 F.3d at 545
n.4.
3
Watson also asserts that the district court erroneously
calculated his criminal history score by assessing three points for
two prior drug convictions. Because we remand on other grounds, we
need not reach this contention.
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consistent with Booker and Hughes.4 We deny as moot Watson’s
motion to place his appeal in abeyance pending the decision in
Booker. 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
4
Although the 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 (Breyer, J., opinion of the Court). On remand, the district
court should first determine the appropriate sentencing range under
the Guidelines, making all factual findings appropriate for that
determination. Hughes, 401 F.3d at 546. The court should consider
this sentencing range along with the other factors described in 18
U.S.C.A. § 3553(a) (West 2000 & Supp. 2005), and then impose a
sentence. Hughes, 401 F.3d at 546. If that sentence falls outside
the Guidelines range, the court should explain its reasons for the
departure as required by 18 U.S.C.A. § 3553(c)(2) (West 2000 &
Supp. 2005). Hughes, 401 F.3d at 546. The sentence must be
“within the statutorily prescribed range and . . . reasonable.”
Id. at 547.
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