UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4146
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
CHARLES EDWARD HOOPER,
Defendant - Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Beckley. David A. Faber, Chief
District Judge. (CR-03-149)
Submitted: June 10, 2005 Decided: July 19, 2005
Before WILKINSON, MICHAEL, and KING, Circuit Judges.
Affirmed in part, vacated in part, and remanded by unpublished per
curiam opinion.
Mary Lou Newberger, Federal Public Defender, David R. Bungard,
Assistant Federal Public Defender, Charleston, West Virginia, for
Appellant. Kasey Warner, United States Attorney, Michael H.
Spencer, Assistant United States Attorney, Charleston, West
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Charles Edward Hooper pled guilty to one count of
distribution of cocaine base, in violation of 21 U.S.C. § 841(a)(1)
(2000). The district court sentenced him under the federal
Sentencing Guidelines to thirty months’ imprisonment. This
sentence was based, in part, on the district court’s attributing
certain drug quantities to Hooper that were not alleged in the
indictment.
In his initial brief, Hooper challenged the district
court’s inclusion of three drug sales conducted by Douglas E.
Jackson as relevant conduct in determining Hooper’s sentence,
arguing that it was not supported by a preponderance of the
evidence. Hooper filed a supplemental brief, citing Blakely v.
Washington, 124 S. Ct. 2531 (2004), asserting for the first time on
appeal that his sentence is unconstitutional. In United States v.
Booker, 125 S. Ct. 738 (2005), 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. Id. 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
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746 (Stevens, J., opinion of the Court); id. at 756-57 (Breyer, J.,
opinion of the Court).
Although Hooper did not raise this Sixth Amendment
challenge at sentencing, this court has held that a mandatory
enhancement based on judicial fact-finding supported by a
preponderance of 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 Hooper.1 Because Hooper does not
challenge the validity of his conviction, we affirm his conviction,
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
1
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 Hooper’s sentencing.
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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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 IN PART, AND REMANDED
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