UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4233
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
TERRANCE J. ADAMS,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Henry E. Hudson, District
Judge. (CR-03-285)
Submitted: June 27, 2005 Decided: July 25, 2005
Before LUTTIG, MICHAEL, and MOTZ, Circuit Judges.
Affirmed in part; vacated and remanded in part by unpublished per
curiam opinion.
Frank W. Dunham, Jr., Federal Public Defender, Robert J. Wagner,
Assistant Federal Public Defender, Frances H. Pratt, Research and
Writing Attorney, Richmond, Virginia, for Appellant. Paul J.
McNulty, United States Attorney, Peter S. Duffey, Assistant United
States Attorney, Richmond, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Following a jury trial, Terrance J. Adams was convicted
of possession of a firearm by a convicted felon in violation of 18
U.S.C. § 922(g)(1) (2000). At sentencing, the district court
determined by a preponderance of the evidence that Adams possessed
the firearm in connection with another felony offense and applied
enhancements based on facts not established by the jury’s verdict.
Adams was sentenced to the statutory maximum of 120 months in
prison followed by three years of supervised release.
On appeal, Adams does not challenge his conviction but
contends the district court committed Sixth Amendment error under
Blakely v. Washington, 124 S. Ct. 2531 (2004), and United States v.
Booker, 125 S. Ct. 738 (2005), at sentencing “by increasing the
guideline range under a mandatory Guidelines system based upon
facts not found by the jury beyond a reasonable doubt at trial.”
Because Adams did not object to his sentence in the district court
based on Blakely or Booker, we review for plain error. United
States v. Hughes, 401 F.3d 540, 547 (4th Cir. 2005). While we
affirm Adams’s conviction, we vacate his sentence because it was
greater than that authorized by the facts established by the jury’s
verdict, and we remand the case for resentencing in accordance with
Booker.*
*
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 Adams’s sentencing.
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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
legal contentions are adequately presented in the materials before
the court and argument would not aid the decisional process.
AFFIRMED IN PART;
VACATED AND REMANDED IN PART
See generally Johnson v. United States, 520 U.S. 461, 468 (1997)
(stating 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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