UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4371
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
RAKIMB SHERIF DENNIS,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. N. Carlton Tilley, Jr.,
Chief District Judge. (CR-03-303)
Submitted: June 3, 2005 Decided: July 13, 2005
Before LUTTIG, GREGORY, and SHEDD, Circuit Judges.
Affirmed in part, vacated in part, and remanded by unpublished per
curiam opinion.
James Edward Quander, Jr., JAMES E. QUANDER, Winston-Salem, North
Carolina, for Appellant. Paul Alexander Weinman, Assistant United
States Attorney, Angela Hewlett Miller, OFFICE OF THE UNITED STATES
ATTORNEY, Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Following a jury trial, Rakimb Sherif Dennis was
convicted of conspiracy to distribute cocaine base (crack), in
violation of 21 U.S.C. §§ 846, 841(b)(1)(a) (2000), carrying a
firearm during a drug trafficking offense, in violation of 18
U.S.C. § 924(c)(1)(A)(i) (2000), and possession of a firearm by a
person previously convicted of a felony, in violation of 18 U.S.C.
§§ 922(g)(1), 924(a)(2) (2000). The district court sentenced
Dennis under the federal sentencing guidelines to 235 months
incarceration on the § 846 conviction, a concurrent 120 months on
the § 922(g)(1) conviction, and a consecutive 60 months in prison
for the § 924(c)(1) offense. Dennis’ counsel filed a brief
pursuant to Anders v. California, 386 U.S. 738 (1967), stating that
there were no meritorious issues for appeal, but challenging the
sufficiency of the evidence to support the jury’s verdict on the
conspiracy charge. Although advised of his right to do so, Dennis
has not filed a pro se supplemental brief. In a supplemental
brief, counsel contends that Dennis’ sentence is unconstitutional
in light of the Supreme Court’s decision in United States v.
Booker, 125 S. Ct. 738 (2005). For the reasons that follow, we
affirm Dennis’ convictions, but vacate his sentence and remand for
resentencing.
Dennis first contends that the evidence was insufficient
to prove the existence of a conspiracy to distribute crack, rather
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than a mere buyer-seller arrangement. “The verdict of a jury must
be sustained if there is substantial evidence, taking the view most
favorable to the Government, to support it.” Glasser v. United
States, 315 U.S. 60, 80 (1942).
Viewed in the light most favorable to the government, the
evidence at trial showed that Timothy Quattlebaum and Roscoe
Anderson would drive Dennis to various locations around Winston-
Salem so that Dennis could distribute crack cocaine. Dennis paid
them in cash or drugs. Anderson and Quattlebaum each drove Dennis
to Greensboro on two separate occasions so that he could obtain
cocaine powder, which he then cooked into crack. Quattlebaum
testified regarding one occasion on which he and two others
accompanied Dennis into a fast food restaurant where Dennis had
made plans to conduct a crack cocaine transaction. Once inside,
Dennis stated that it was a “setup” and the four left the
restaurant. Evidence was also presented that Dennis, with the
assistance of others, would sell crack from a residence in Winston-
Salem. We find that this evidence was sufficient for the jury to
find that Dennis knowingly and voluntarily entered into an
agreement with one or more persons to distribute crack cocaine.
See Glasser, 315 U.S. at 80; United States v. Burgos, 94 F.3d 849,
857 (4th Cir. 1996).
Dennis argued that the evidence supported merely a buyer-
seller relationship. However, the jury was properly instructed as
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to the elements necessary to prove a conspiracy and also was
instructed that a mere buyer-seller relationship was not sufficient
to prove a conspiracy. The jury returned a verdict finding that a
conspiracy existed. Because there was sufficient evidence to
support that finding, we affirm the district court’s denial of
Dennis’ motion for judgment of acquittal and affirm Dennis’
conviction. See Glasser, 315 U.S. at 80; United States v.
Saunders, 886 F.2d 56, 60 (4th Cir. 1989) (holding that credibility
determinations are within the sole province of the jury).
Citing United States v. Booker, 125 S. Ct. 738 (2005),
Dennis argues on appeal that his sentence is unconstitutional
because it was enhanced based on the district court’s finding that
he was a leader or organizer of the offense, a fact that was
neither charged in the indictment nor found by the jury beyond a
reasonable doubt. In Booker, the Supreme Court held that the
federal sentencing guidelines’ mandatory scheme—which provided for
sentencing enhancements based on facts found by the court—violated
the Sixth Amendment. Id. at 746 (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). In United States v. Hughes, 401 F.3d 540 (4th Cir.
2005), this court held that a sentence enhanced based on facts
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found by the court, rather than upon facts found by the jury or
admitted by the defendant, constitutes plain error that affects the
defendant’s substantial rights and warrants reversal. Id. at 547-
48 (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 imposing a sentence under the federal
sentencing guidelines as they existed prior to Booker.1 Therefore,
although we affirm Dennis’ convictions, we vacate his sentence and
remand for proceedings consistent with Hughes.2 Id. at 546 (citing
Booker, 125 S. Ct. at 764-65, 767 (Breyer, J., opinion of the
Court)). We dispense with oral argument because the facts and
1
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 Dennis’ 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”).
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.
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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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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