UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4703
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
GARY STEVEN ALLMOND,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. Frank W. Bullock, Jr.,
District Judge. (CR-04-12; CR-04-58; CR-04-59; CR-04-60; CR-04-61)
Submitted: June 15, 2005 Decided: July 14, 2005
Before LUTTIG and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed in part; vacated and remanded in part by unpublished per
curiam opinion.
William L. Osteen, Jr., ADAMS & OSTEEN, Greensboro, North Carolina,
for Appellant. Kearns Davis, 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Unpublished opinions are not binding precedent in this circuit.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:
Gary Steven Allmond appeals his convictions and ninety-
month sentence imposed following his guilty plea to five counts of
bank robbery, in violation of 18 U.S.C. § 2113(a) (2000).
Allmond’s attorney filed a brief in accordance with Anders v.
California, 386 U.S. 738 (1967), raising sentencing issues under
Blakely v. Washington, 124 S. Ct. 2531 (2004), but stating that, in
his view, there were no meritorious grounds for appeal. Following
the Supreme Court’s decision in United States v. Booker, 125 S. Ct.
738 (2005), we gave the parties an opportunity to submit
supplemental briefing discussing the impact of the Booker decision
on the case. Counsel now argues that Booker requires that the case
be remanded to the district court for imposition of a new sentence.
Allmond has filed a one-page pro se supplemental letter, informing
the court that he objects to a three-level enhancement imposed for
use of a weapon pursuant to U.S. Sentencing Guidelines Manual
§ 2B3.1(b)(2) (2003). For the reasons discussed below, we vacate
Allmond’s sentence and remand for resentencing in light of 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. 125 S. Ct. at 746, 750 (Stevens, J., opinion of the
Court). The Court remedied the constitutional violation by
- 2 -
severing two statutory provisions, 18 U.S.C.A. § 3553(b)(1) (West
Supp. 2005) (requiring sentencing courts to impose a sentence
within the applicable guideline range), and 18 U.S.C.A. § 3742(e)
(West 2000 & Supp. 2005) (setting forth appellate standards of
review for guideline issues), thereby making the guidelines
advisory. Id. at 756-57 (Breyer, J., opinion of the Court).
Based on our review of the record, we find that Allmond’s
sentence was enhanced based on facts that were not admitted by him
nor proved to a jury beyond a reasonable doubt. Thus, pursuant to
Booker, we find that Allmond’s sentence was imposed in violation of
the Sixth Amendment and note that the district court also erred in
treating the guidelines as mandatory.1 We therefore vacate
Allmond’s sentence and remand for resentencing consistent with the
Booker decision.
We note that counsel raises one additional Blakely issue
in his initial Anders brief, contending that the district court’s
calculation of Allmond’s criminal history category was
unconstitutional. Citing Almendarez-Torres v. United States, 523
U.S. 224 (1998), counsel argues that determinations involving
criminal history points go well beyond the mere “fact of a prior
1
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 Allmond’s sentencing.
- 3 -
conviction” and therefore must be admitted by the defendant or
found by a jury beyond a reasonable doubt.
In Almendarez-Torres, the Supreme Court held that “the
government need not allege in its indictment and need not prove
beyond reasonable doubt that a defendant had prior convictions for
a district court to use those convictions for purposes of enhancing
a sentence.” In Apprendi v. New Jersey, 530 U.S. 466, 490 (2005),
the Supreme Court held that “[o]ther than the fact of a prior
conviction, any fact that increases the penalty for a crime beyond
the prescribed statutory maximum must be submitted to a jury, and
proved beyond a reasonable doubt.” Apprendi did not overrule
Almendarez-Torres and the Court recently reaffirmed its holding in
Apprendi. See Booker, 125 S. Ct. at 756. Moreover, our review of
the record reveals that the district court’s assessment of criminal
history points was based on the summary of the convictions in
Allmond’s presentence report and merely involved consideration of
the sentence imposed for each conviction. Accordingly, we conclude
that the district court properly considered Allmond’s prior
sentences in calculating his criminal history category. See United
States v. Washington, 404 F.3d 834 (4th Cir. 2005). We therefore
reject this remaining sentencing claim.
In accordance with Anders, we have reviewed the entire
record in this case. Although we affirm Allmond’s convictions, we
vacate the sentence and remand for resentencing in light of
- 4 -
Booker.2 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 AND REMANDED IN PART
2
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 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 described in 18
U.S.C.A. § 3553(a) (West 2000 & Supp. 2005), 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.A. § 3553(c)(2) (Supp. 2005). Id. The
sentence must be “within the statutorily prescribed range and . . .
reasonable.” Id. at 546-47.
- 5 -