UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 03-4913
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JEFFREY DAJUAN ALLEN,
Defendant - Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Charleston. Charles H. Haden II,
District Judge. (CR-02-74)
Submitted: May 25, 2005 Decided: July 28, 2005
Before WILKINSON, WILLIAMS, and MICHAEL, Circuit Judges.
Affirmed in part, vacated in part, and remanded by unpublished per
curiam opinion.
Mary Lou Newberger, Federal Public Defender, Jonathan D. Byrne,
Appellate Counsel, Charleston, West Virginia, for Appellant. Kasey
Warner, United States Attorney, Steven I. Loew, 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Unpublished opinions are not binding precedent in this circuit.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:
Jeffrey Dajuan Allen appeals from the judgment of the
district court sentencing him to 120 months’ imprisonment for
possession of a firearm as a convicted felon, in violation of 18
U.S.C. § 922(g) (2000). Finding that the district court’s
imposition of sentence violated Allen’s Sixth Amendment right to
trial by a jury, we affirm the conviction,1 vacate the sentence,
and remand for further proceedings.
Allen alleges the district court erred in applying the
Sentencing Guidelines by concluding he had acted with premeditation
or by lying in wait to effectuate the attempted murder of Dennis
Painter. We have previously noted that no set period of time is
required to demonstrate premeditation. See Faust v. North
Carolina, 307 F.2d 869, 871 (4th Cir. 1962). All that is required
is that the defendant acted with a “cool mind [and] did, in fact,
reflect, at least for a short period time before his act.” United
States v. Shaw, 701 F.2d 367, 392-93 (5th Cir. 1983). Under the
facts of this case, and subject to the discussion below, we cannot
conclude that the district court clearly erred in its determination
regarding premeditation.
In his supplemental brief, Allen claims the district
court’s imposition of sentence violates his Sixth Amendment right
to trial by a jury. Because we conclude that the district court’s
1
Allen does not challenge his conviction.
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application of the sentencing guidelines affected Allen’s sentence
on the basis of factual questions not found by the jury beyond a
reasonable doubt, we agree. See United States v. Booker, 125 S.
Ct. 738 (2005); United States v. Hughes, 401 F.3d 540 (4th Cir.
2005). Accordingly, we vacate Allen’s sentence and remand for
further proceedings.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. 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 dispense with oral argument because the facts and
2
Just as we noted in United States v. Hughes, 401 F.3d 540,
545 n.4 (4th Cir. 2005), “[w]e of course offer no criticism of the
district judge, who followed the law and procedure in effect at the
time” of Allen’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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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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