UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4362
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
CHARLES G. CANADY,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. James C. Fox, Senior
District Judge. (CR-02-127)
Submitted: April 27, 2005 Decided: July 13, 2005
Before WILKINSON, NIEMEYER, and MOTZ, Circuit Judges.
Affirmed in part, vacated in part, and remanded by unpublished per
curiam opinion.
R. Clarke Speaks, Wilmington, North Carolina, for Appellant. Frank
D. Whitney, United States Attorney, Anne M. Hayes, Christine
Witcover Dean, Assistant United States Attorneys, Raleigh, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Charles G. Canady appeals from his conviction and
sentence for conspiracy with intent to distribute fifty grams or
more of cocaine base and carrying a firearm during a drug
trafficking conspiracy, in violation of 21 U.S.C. § 846 (2000) and
18 U.S.C. § 924(c) (2000). We affirm Canady’s conviction, but we
remand for resentencing in light of United States v. Booker, 125 S.
Ct. 738 (2005), and United States v. Hughes, 401 F.3d 540 (4th Cir.
2005).
Canady claims the district court erred when it denied his
motion for a judgment of acquittal. This court reviews the
district court’s decision to deny a motion for judgment of
acquittal de novo. United States v. Gallimore, 247 F.3d 134, 136
(4th Cir. 2001). Canady is mistaken that his acquittal of a drug
possession charge merits dismissal of the gun possession charge
because the gun possession charge related to the drug conspiracy
charge for which he was convicted and not to the drug possession
charge for which he was acquitted. Moreover, the jury had
sufficient evidence to conclude that the gun, which was positioned
next to the drug proceeds in Canady’s car, facilitated the safe
transport of those proceeds. Accordingly, the district court did
not err in denying Canady’s motion for a judgment of acquittal.
Canady argues that the district court erred in denying
his request for a downward adjustment for his mitigating role in
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the offense. The district court’s determination of the defendant’s
role in the offense is a factual issue reviewed for clear error.
United States v. Perkins, 108 F.3d 512, 518 (4th Cir. 1997).
Safely storing the money was not a minor part of the drug
trafficking conspiracy, and Canady’s role, while not complicated,
was nevertheless integral and material. Canady has failed to
provide any evidence that the district court clearly erred in its
decision.
Canady argued in a supplemental brief that the district
court violated the Confrontation Clause of the Sixth Amendment by
admitting statements his co-conspirator James Ardell Canady
(“Ardell”) made to a confidential informant that Canady was a part
of the drug trafficking conspiracy. Canady contends that the
statements were inadmissible under Crawford v. Washington, 541 U.S.
36 (2004), because Ardell’s statements were “testimonial” in
nature. In Crawford the Supreme Court announced that the
Confrontation Clause prohibits the admission of testimonial
statements that are not subject to cross-examination. Id. at 50-
52. While Crawford did not provide a comprehensive definition of
what constitute “testimonial statements,” the broadest
interpretation argued by the parties in Crawford would define
testimonial statements as “made under circumstances which would
lead an objective witness reasonably to believe that the
statement[s] would be available for use at a later trial.” Id. at
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52. Crawford referenced Bourjaily v. United States, 483 U.S. 171
(1987), as an example of a case in which nontestimonial statements
were correctly admitted against the defendant despite the lack of
prior opportunity for cross-examination. Crawford, 541 U.S. at 58.
In Bourjaily, the Court rejected a Confrontation Clause objection
to the admission of a conversation between a co-defendant and a
confidential informant. Bourjaily, 483 U.S. at 181-84 (holding
that statements admissible under Rule 801(d)(2)(E) did not violate
the Confrontation Clause). The statements at issue here were not
testimonial, even under the broadest interpretation of that term,
as Ardell clearly did not realize that his statements to the
informant were going to be used against him at trial. The district
court did not abuse its discretion by admitting the statements by
Ardell.
Finally, Canady claims that the district court improperly
sentenced him when it imposed a sentence greater than the maximum
authorized by the facts found by the jury alone. Because Canady
failed to raise this claim below, we must review it for plain
error. Hughes, 401 F.3d at 547. The jury convicted Canady of
conspiracy to distribute more than fifty grams of cocaine base. At
sentencing, the district court found Canady responsible for 79.8
kilograms of cocaine base. Given Canady’s criminal history
category of II, the facts found by the jury on the drug conspiracy
charge authorized an offense level of thirty-two, with a resulting
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sentencing range of 135-168 months, while the range associated with
the judicially enhanced offense level of thirty-eight was 262-327
months.1 After a downward departure for substantial assistance,
Canady was sentenced to 182 months on this count.2 The district
court erred in basing Canady’s sentence on judge-found facts under
a mandatory guidelines regime, and the error was plain. Id. at
547-48. Because Canady’s sentence was longer than what could have
been imposed based on the jury’s verdict, the error affected
Canady’s substantial rights, id. at 548, and we will notice the
error, id. at 555. Therefore, Canady must be resentenced.3
Although the sentencing guidelines are no longer
mandatory, Booker makes clear that a sentencing court must still
1
The presentence report recommended a criminal history
category of III, and the district court stated at sentencing that
it was using category III. (J.A. 573). However, as the Government
points out in its brief, the sentencing range stated by the
district court is that associated with category II. Earlier in the
sentencing hearing, the court ruled in Canady’s favor on an
objection to the criminal history category, reducing his category
from III to II. (J.A. 562-63, 569). Thus, the later statement
that Canady’s criminal history category was III is either a
typographical error in the transcript or a misstatement by the
district court.
2
The consecutive sixty month sentence for the firearms charge
is not at issue.
3
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 Canady’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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“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 the factual findings appropriate for that
determination. See 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)(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 affirm Canady’s conviction. In light of Booker and
Hughes, we vacate Canady’s sentence and remand for resentencing.
The facts and legal contentions are adequately presented in the
materials before the court and oral argument would not aid the
decisional process.
AFFIRMED IN PART, VACATED
IN PART, AND REMANDED
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