UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4282
UNITED STATES OF AMERICA,
Plaintiff - Appellant,
versus
STEVEN TODD ASHWORTH,
Defendant - Appellee.
Appeal from the United States District Court for the Southern
District of West Virginia, at Charleston. David A. Faber, Chief
District Judge. (CR-03-278)
Submitted: June 30, 2005 Decided: July 19, 2005
Before LUTTIG, MOTZ, and SHEDD, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
Stephen M. Horn, Acting United States Attorney, R. Gregory McVey,
Assistant United States Attorney, Huntington, West Virginia, for
Appellant. Donald L. Stennett, BREWSTER, MORHOUS, CAMERON, CARUTH
MOORE, KERSEY & STAFFORD, P.L.L.C., Charleston, West Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Steven Todd Ashworth was convicted by a jury of
distribution of a quantity of methamphetamine in violation of 21
U.S.C. § 841(a) (2000), and 18 U.S.C. § 2 (2000) (Count Two of a
two-count indictment), but acquitted of conspiring with several
others to manufacture and distribute methamphetamine (Count One).
The district court sentenced Ashworth to sixteen months
imprisonment. The government has appealed the sentence, contending
that the district court erred when it determined that it was barred
from considering acquitted conduct to calculate the guideline range
by United States v. Booker, 125 S. Ct. 738 (2005), and United
States v. Hughes, 401 F.3d 540 (4th Cir. 2005). We agree that the
court erred in this respect; accordingly, we vacate the sentence
and remand for resentencing.
Based on the evidence produced at trial, the probation
officer recommended that Ashworth was responsible for 567 grams of
methamphetamine. The probation officer recommended a base offense
level of 32 (500 grams to 1.5 kilograms of methamphetamine), U.S.
Sentencing Guidelines Manual § 2D1.1(c)(4) (2004), with a two-level
increase for possession of a firearm, USSG § 2D1.1(b)(1). Ashworth
was in criminal history category I, which gave him a guideline
range of 151-188 months.
Ashworth objected to the entire guideline calculation
based on the Supreme Court’s decision in Booker. At the sentencing
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hearing on January 31, 2005, Ashworth’s lawyer argued that, under
Booker, the district court should not consider as relevant conduct
for sentencing purposes “the conduct for which [Ashworth] was
acquitted,” that is, the conspiracy. The district court determined
that, under Booker and Fanfan* and this court’s decision in Hughes,
it was constrained to calculate the guideline range based only on
the one count of methamphetamine distribution of which Ashworth had
been convicted and to disregard all other conduct that was part of
the conspiracy. The court’s determination reduced the offense
level from 34 to 12. Because Ashworth was in criminal history
category I, the guideline range decreased from 151-188 to 10-16
months. The court imposed a sentence of sixteen months
imprisonment.
On appeal, the government argues that Booker does not
preclude the sentencing court from considering acquitted conduct in
determining the guideline range. In Booker, the Supreme Court held
that its decision in Blakely v. Washington, 124 S. Ct. 2531 (2004),
applies to the federal sentencing guidelines and that the mandatory
guidelines scheme which provided for sentence enhancements based on
facts found by the court violated the Sixth Amendment. Booker, 125
S. Ct. at 746-48, 755-56 (Stevens, J., opinion of the Court). The
Court remedied the constitutional violation by severing and
excising the statutory provisions that mandate sentencing and
*
United States v. Fanfan, 125 S. Ct. 738 (2005).
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appellate review under the guidelines, thus making the guidelines
advisory. Id. at 756-57 (Breyer, J., opinion of the Court).
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. To impose a sentence consistent
with Booker, “a district court shall first calculate (after making
the appropriate findings of fact) the range prescribed by the
guidelines.” Hughes, 401 F.3d at 546 (emphasis added). The court
must consider the guideline range along with the other relevant
factors in the guidelines and those set out in 18 U.S.C.A.
§ 3553(a) (West 2000 & Supp. 2005), and then impose a sentence.
Hughes, 401 F.3d at 546. 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) (West 2000 &
Supp. 2005). Hughes, 401 F.3d at 546. The sentence must be
“within the statutorily prescribed range and . . . reasonable.”
Id.
Under the pre-Booker guidelines, the district court was
entitled to consider acquitted conduct as relevant conduct. United
States v. Watts, 519 U.S. 148, 157 (1997). After Booker, applying
the guidelines as advisory, the district court may continue to
consider acquitted conduct in determining the guideline range “as
long as [the court’s consideration of acquitted conduct] does not
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support any mandatory calculation,” or “violate any of the judge’s
obligations to consider relevant factors.” United States v.
Williams, 399 F.3d 450, 454 (2d Cir. 2005); see also United
States v. Duncan, 400 F.3d 1297, 1304-05 (11th Cir. 2005) (“Booker
does not suggest that the consideration of acquitted conduct
violates the Sixth Amendment as long as the judge does not impose
a sentence that exceeds what is authorized by the jury
verdict. . . . [and instead] suggests that the sentencing judges
can consider relevant acquitted conduct when applying the
Guidelines in an advisory manner, ‘[f]or when a trial judge
exercises his discretion to select a specific sentence within a
defined range, the defendant has no right to a jury determination
of the facts that the judge deems relevant.’ Booker, 125 S. Ct. at
750.”).
Here, because the jury acquitted Ashworth on the
conspiracy count, the district court mistakenly believed that it
was required to exclude the evidence of Ashworth’s participation in
the conspiracy from its calculation of the offense level. The
district court must consider the correct guideline range before
imposing sentence under the post-Booker sentencing scheme. Hughes,
401 F.3d at 546, 556.
We therefore vacate the sentence and remand for
resentencing. On remand, the district court should determine by a
preponderance of the evidence whether Ashworth conspired to
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manufacture and distribute methamphetamine and, if so, the court
should recalculate the base offense level accordingly. 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.
VACATED AND REMANDED
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