UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4614
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
KEITH JAMES HARRIS, JR.,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. James C. Fox, Senior
District Judge. (CR-03-347-F)
Submitted: June 8, 2005 Decided: July 12, 2005
Before NIEMEYER, MICHAEL, and MOTZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Thomas P. McNamara, Federal Public Defender, G. Alan DuBois,
Assistant Federal Public Defender, Raleigh, 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Unpublished opinions are not binding precedent in this circuit.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:
Keith James Harris, Jr., appeals his seventy-two month
sentence imposed following his entry of a guilty plea to a charge
of unlawful possession of ammunition by a felon, in violation of 18
U.S.C. § 922(g) (2000). Harris does not challenge his conviction
on appeal.
Including several enhancements, the Presentence Report
(“PSR”) determined that Harris’ Sentencing Guidelines range was
seventy to eighty-seven months’ imprisonment. In written
objections, Harris asserted that the judicial enhancements listed
in the PSR violated his Sixth Amendment rights under Blakely v.
Washington, 124 S. Ct. 2531 (2004). However, at the time Harris
was sentenced, this court had held that Blakely did not apply to
the Federal Sentencing Guidelines in United States v. Hammoud, 378
F.3d 426 (4th Cir.) (order), opinion issued by 381 F.3d 316, 353-54
(4th Cir. 2004) (en banc), cert. granted and judgment vacated, 125
S. Ct. 1051 (2005). Accordingly, the district court overruled
Harris’ objections and adopted the PSR. Nevertheless, Harris’
counsel renewed his objections to preserve the issues on appeal.
In imposing a sentence of seventy-two months, the district court
stated that it had followed the Sentencing Reform Act and 18 U.S.C.
§ 3553 (2000). The court also stated that the sentence it imposed
is “what I would impose upon my discretionary authority pursuant to
the statutes that I have mentioned.”
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Because Harris objected in the district court to the
guidelines calculation under Blakely, he need not establish plain
error. Cf. United States v. White, 405 F.3d 208 (4th Cir. 2005);
United States v. Hughes, 401 F.3d 540 (4th Cir. 2005). Under Fed.
R. Crim. P. 52(a), however, “[a]ny error . . . that does not affect
substantial rights must be disregarded.” Because the district
court expressly stated that after considering the guideline range
and section 3553, it would have imposed the same sentence, we
conclude that any error under Booker is harmless. Moreover, we
conclude that because the district court stated it considered
section 3553, and imposed a sentence within the now-advisory
guidelines range and below the statutory maximum for the offense,
the sentence was reasonable. Cf. United States v. Hughes, 401 F.3d
540, 546-47 (4th Cir. 2005) (citing Booker, 125 S. Ct. at 764-65,
767) (noting after Booker, sentencing courts should determine the
sentencing range under the guidelines, consider the other factors
under § 3553(a), and impose a reasonable sentence within the
statutory maximum).
Accordingly, we affirm Harris’ conviction and sentence. 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
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