UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4016
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
THOMAS RONALD AVANT,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. N. Carlton Tilley, Jr.,
Chief District Judge. (CR-04-153; CR-04-213; CR-04-214; CR-04-215;
CR-04-216; CR-04-217)
Submitted: July 20, 2005 Decided: August 11, 2005
Before WILKINSON, GREGORY, and DUNCAN, Circuit Judges.
Affirmed in part; vacated and remanded in part by unpublished per
curiam opinion.
Louis Carr Allen, III, Federal Public Defender, Greensboro, North
Carolina, for Appellant. Paul Alexander Weinman, Assistant United
States Attorney, Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Thomas Ronald Avant appeals from the judgment of the
district court sentencing him to 151 months’ imprisonment for his
role in a series of bank robberies and attempted bank robberies.
Avant does not challenge his conviction, which we accordingly
affirm. Finding that the district court’s pronouncement of a lower
alternative sentence demonstrates that Avant’s substantial rights
were abridged by the sentence actually imposed, we grant the motion
to remand, vacate the sentence, and remand for resentencing
consistent with United States v. Booker, 125 S. Ct. 738 (2005).
Avant pled guilty to five counts of bank robbery and one
count of attempted bank robbery, in violation of 18 U.S.C.
§ 2113(a) (2000). At sentencing, the district court pronounced a
sentence of 151 months in accordance with the United States
Sentencing Guidelines. The district court also announced an
alternative sentence of nine years (108 months) based on recent
developments calling into question the application of mandatory
sentencing guidelines schemes. See Blakely v. Washington, 124 S.
Ct. 2531 (2004).
In United States v. Booker, 125 S. Ct. 738 (2005), the
Supreme Court ruled the Sixth Amendment is violated when a district
court, acting pursuant to the Sentencing Reform Act and the
guidelines, imposes a sentence greater than the maximum guideline
sentence authorized by the facts found by the jury alone. See id.
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at 746, 750. This court concluded that such a violation amounts to
plain error. See United States v. Hughes, 401 F.3d 540, 547-48
(4th Cir. 2005). To demonstrate plain error, a defendant must
establish the error occurred, that it was plain, and that it
affected his substantial rights. Id. In United States v. White,
405 F.3d 208 (4th Cir. 2005), we held that a defendant can
demonstrate the prejudice associated with a mandatory application
of the guidelines on the basis of statements by the sentencing
court that it would otherwise have departed from the guidelines.
See id. at 223-24. Here, the district court’s pronouncement of an
alternative, lower sentence satisfies this burden.*
Accordingly, we vacate Avant’s sentence and remand for
resentencing. 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
*
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 Avant’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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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 material before
the court and argument would not aid the decisional process.
AFFIRMED IN PART;
VACATED AND REMANDED IN PART
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