UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 03-4487
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
WILLIAM ANTONIO SEHEN,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Danville. Norman K. Moon, District Judge.
(CR-02-128)
Submitted: June 15, 2005 Decided: July 14, 2005
Before WILKINSON, LUTTIG, and SHEDD, Circuit Judges.
Affirmed in part, vacated in part, and remanded by unpublished per
curiam opinion.
Roland M.L. Santos, Harrisonburg, Virginia, for Appellant. John L.
Brownlee, United States Attorney, Anthony P. Giorno, Assistant
United States Attorney, Roanoke, Virginia, for Appellee
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
William Sehen was convicted by jury of possession of five
grams or more of methamphetamine with intent to distribute, in
violation of 21 U.S.C. § 841 (2000). The district court sentenced
him under the federal Sentencing Guidelines to a 121-month term of
imprisonment. This sentence was based, in part, on the court’s
findings concerning characteristics of the offense. Specifically,
the court enhanced Sehen’s base offense level based on its findings
that Sehen proffered a dangerous weapon and for obstruction of
justice.
Citing Blakely v. Washington, 124 S. Ct. 2531 (2004), and
United States v. Booker, 125 S. Ct. 738 (2005), Sehen asserts for
the first time on appeal that his sentence is unconstitutional. In
Booker, the Supreme Court held that the federal Sentencing
Guidelines, under which courts were required to impose sentencing
enhancements based on facts found by the court by a preponderance
of the evidence, violated the Sixth Amendment because of their
mandatory nature. 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 756-57 (Breyer, J., opinion of
the Court). Although Sehen did not raise this Sixth Amendment
challenge at sentencing, this court has held that a mandatory
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enhancement based on judicial fact-finding supported by a
preponderance of the evidence constitutes plain error warranting
correction. United States v. Hughes, 401 F.3d 540, 547-48 (4th
Cir. 2005) (citing United States v. Olano, 507 U.S. 725, 731-32
(1993)).
In light of Booker and Hughes, we find that the district
court plainly erred in sentencing Sehen.1 Therefore, we affirm his
conviction,2 vacate his sentence, and remand for proceedings
consistent with Hughes.3 Id. at 546 (citing Booker, 125 S. Ct. at
764-65, 67 (Breyer, J., opinion of the Court)). We dispense with
oral argument because the facts and legal contentions are
1
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 Sehen’s sentencing.” 431 F.3d at 545 n.4.
2
To the extent Sehen contends Booker undermines the validity
of his conviction, we reject this argument.
3
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.
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)
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). Id. The sentence
must be “within the statutorily prescribed range and . . .
reasonable.” Id. at 547.
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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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