UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4854
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JOSEPH LEVI PLUMBER,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. William L. Osteen, District
Judge. (CR-04-24)
Submitted: May 27, 2005 Decided: July 6, 2005
Before WILLIAMS, MICHAEL, and GREGORY, Circuit Judges.
Affirmed in part, vacated in part, and remanded by unpublished per
curiam opinion.
Louis C. Allen, III, Federal Public Defender, Gregory Davis,
Assistant Federal Public Defender, Greensboro, North Carolina, for
Appellant. Anna Mills Wagoner, United States Attorney, Paul A.
Weinman, 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Unpublished opinions are not binding precedent in this circuit.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:
Joseph Levi Plumber pled guilty to transporting a stolen
vehicle in interstate commerce in violation of 18 U.S.C. §§ 2, 2312
(2000), and using an unauthorized access device to obtain over
$1000 worth of things in violation of 18 U.S.C. §§ 2, 1029(a)(2),
(c)(1)(A)(i) (2000). On August 24, 2004, Plumber was sentenced to
serve concurrent terms of thirty-one months’ imprisonment, to pay
$5919 restitution, and to serve concurrent terms of three years’
supervised release. Plumber objected to the district court’s
consideration of certain relevant conduct in determining his
sentence, arguing that Blakely v. Washington, 124 S. Ct. 2531
(2004), applied to the federal sentencing guidelines. The district
court overruled the objection. Plumber appealed his sentence,
alleging that in light of the Supreme Court’s subsequent decision
in United States v. Booker, 125 S. Ct. 738 (2005), his sentence
violates the Sixth Amendment and that the district court erred in
applying the guidelines as mandatory. He argues that his sentence
should be vacated and his case remanded for resentencing in accord
with Booker.
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. Booker, 125 S. Ct. at 746, 750 (Stevens, J., opinion of
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the Court). The Court remedied the constitutional violation by
severing two statutory provisions, 18 U.S.C.A. § 3553(b)(1) (West
Supp. 2004) (requiring sentencing courts to impose a sentence
within the applicable guideline range), and 18 U.S.C.A. § 3742(e)
(West 2000 & Supp. 2004) (setting forth appellate standards of
review for guideline issues), thereby making the guidelines
advisory. Booker, 125 S. Ct. at 756-57 (Breyer, J., opinion of the
Court). The Government states in its appellate brief that it
agrees the district court erred and requests resentencing.
We therefore affirm the conviction, vacate the sentence
imposed by the district court, and remand for resentencing
consistent with Booker.* 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.” Booker, 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) (applying Booker on plain error review). The court
should consider this sentencing range along with the other factors
*
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 Plumber’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”).
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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
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