UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-5081
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
MARLIN ANDREW MARRS,
Defendant - Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Bluefield. David A. Faber, Chief
District Judge. (CR-03-289)
Submitted: June 8, 2005 Decided: June 27, 2005
Before WILKINSON, LUTTIG, and MOTZ, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
Jonathan David Byrne, Michael L. Desautels, OFFICE OF THE FEDERAL
PUBLIC DEFENDER, Charleston, West Virginia, for Appellant. John
Lanier File, OFFICE OF THE UNITED STATES ATTORNEY, Beckley, West
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Marlin Andrew Marrs pled guilty to knowingly and
intentionally distributing “a quantity” of cocaine base on March 6,
2002, in violation of 21 U.S.C. § 841(a)(1) (2000). He was
sentenced to forty-six months of imprisonment. At the sentencing
hearing, Marrs objected to the district court’s consideration of
certain relevant conduct in determining his sentence, arguing that
the holding in Blakely v. Washington, 124 S. Ct. 2531 (2004),
applied to the federal sentencing guidelines. The district court
overruled his objection, relying on United States v. Hammoud, 378
F.3d 426 (4th Cir.) (order), opinion issued by 381 F.3d 316 (4th
Cir. 2004) (en banc), vacated, 125 S. Ct. 1051 (2005). Marrs noted
an appeal. The parties have now filed a joint motion to remand the
case for resentencing, citing United States v. Booker, 125 S. Ct.
738 (2005), and United States v. Hughes, 401 F.3d 540 (4th Cir.
2005).
In Booker, the Supreme Court held that the mandatory
manner in which the federal sentencing guidelines required courts
to impose sentence 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). After
Booker, courts must calculate the appropriate guideline range,
consider the range in conjunction with other relevant factors under
the guidelines and 18 U.S.C.A. § 3553(a) (West 2000 & Supp. 2005),
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and impose a sentence. If a court imposes a sentence outside the
guideline range, the court must state its reasons for doing so.
Hughes, 401 F.3d at 546. This remedial scheme applies to any
sentence imposed under the mandatory guidelines, regardless of
whether the sentence violates the Sixth Amendment. Id. at 547
(citing Booker, 125 S. Ct. at 769 (Breyer, J., opinion of the
Court)).
We conclude that Marrs preserved the issue of whether his
sentence was imposed in violation of the Sixth Amendment. We
further hold that the sentence did constitute such a violation, and
therefore, grant the parties’ joint motion to remand, vacate the
sentence, and remand for resentencing consistent with Booker.*
Following resentencing, the appeal shall be returned to this court
for further proceedings.
VACATED AND REMANDED
*
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 Marrs’s sentencing.
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