UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4274
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
PRESTON T. JENKINS,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. James C. Cacheris, Senior
District Judge. (CR-03-485)
Submitted: July 25, 2005 Decided: August 25, 2005
Before NIEMEYER, WILLIAMS, and TRAXLER, Circuit Judges.
Affirmed in part, vacated in part, and remanded by unpublished per
curiam opinion.
Leslie S. McAdoo-Brobson, LESLIE MCADOO, CHARTERED, Washington,
D.C., for Appellant. Paul J. McNulty, United States Attorney,
Raymond E. Patricco, Jr., Stephen Campbell, Assistant United States
Attorneys, Alexandria, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Preston T. Jenkins appeals his convictions and sentence
for conspiracy to commit prostitution, in violation of 18 U.S.C. §
371 (2000), two counts of interstate transportation in furtherance
of prostitution, in violation of 18 U.S.C. §§ 2421-22 (2000), and
three counts of inducing travel for prostitution, in violation of
18 U.S.C. § 2422(a)(2000). While we affirm his convictions, we
vacate his sentence and remand for resentencing.
Jenkins first contends the district court erred by
denying his motion to suppress the evidence seized pursuant to a
state search warrant. Specifically, Jenkins asserts that the
transfer of the seized property to federal authorities constituted
a second and unlawful seizure in violation of his Fourth Amendment
rights. This court reviews the district court’s factual findings
underlying a motion to suppress for clear error and the district
court’s legal determinations de novo. Ornelas v. United States,
517 U.S. 690, 699 (1996); United States v. Perkins, 363 F.3d 317,
320 (4th Cir. 2004), cert. denied, 125 S. Ct. 867 (2005). When a
suppression motion has been denied, this court reviews the evidence
in the light most favorable to the government. United States v.
Seidman, 156 F.3d 542, 547 (4th Cir. 1998). We find the district
court properly determined the property in question never lost its
status as evidence, and because Jenkins failed to formally move for
the return of his property as required by state law, he had no
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right to the return of his property. See Va. Code Ann. §§ 19.2-58,
19.2-60. Accordingly, we find no error in the court’s denial of
Jenkins’ motion to suppress, and affirm Jenkins’ convictions.
Jenkins also contends that his sentence was imposed in
violation of the Supreme Court’s decision in Blakely v. Washington,
542 U.S. 296 (2004). Because Jenkins did not raise this claim in
the district court, his sentence is reviewed for plain error. See
United States v. Hughes, 401 F.3d 540, 547 (4th Cir. 2005). To
demonstrate plain error, a defendant must establish that error
occurred, that it was plain, and that it affected his substantial
rights. United States v. Olano, 507 U.S. 725, 731-32 (1993);
Hughes, 401 F.3d at 547-48. If a defendant establishes these
requirements, the court’s “discretion is appropriately exercised
only when failure to do so would result in a miscarriage of
justice, such as when the defendant is actually innocent or the
error seriously affects the fairness, integrity or public
reputation of judicial proceedings.” Id. at 555 (internal quotation
marks and citation omitted).
After Jenkins filed this appeal, the Supreme Court issued
United States v. Booker, 125 S. Ct. 738 (2005), holding that the
mandatory manner in which the federal sentencing guidelines
required courts to impose sentencing enhancements based on facts
found by the court by a preponderance of the evidence violated the
Sixth Amendment. The Court remedied the constitutional violation
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by severing two statutory provisions, 18 U.S.C. § 3553(b)(1) (2000)
(requiring courts to impose a sentence within the applicable
guideline range), and 18 U.S.C. § 3742(e) (2000) (setting forth
appellate standards of review for guidelines issues), thereby
making the guidelines advisory. See United States v. Hughes, 401
F.3d 540, 546 (4th Cir. 2005)(citing Booker, 125 S. Ct. at 756-57).
After Booker, courts must calculate the appropriate guidelines
range, consider the range in conjunction with other relevant
factors under the guidelines and 18 U.S.C. § 3553(a) (2000), and
impose a sentence. If a court imposes a sentence outside the
guidelines range, the district court must state its reasons for
doing so. Id. This remedial scheme applies to any sentence
imposed under the mandatory guidelines, regardless of whether the
sentence violates the Sixth Amendment. Id. at 547 (citing Booker,
125 S. Ct. at 769).
Here, according to the Presentence Report (“PSR”), Jenkins’
base offense level was 14, pursuant to U.S. Sentencing Guidelines
Manual § 2G1.1(a)(2). Jenkins then received a four-level increase
for his role in the offense, pursuant to USSG § 3B1.1(a). Jenkins
also received a two-level increase for obstruction of justice for
threatening a prosecution witness, pursuant to USSG § 3C1.1, giving
him an adjusted offense level of 20. Finally, Jenkins’ offense
level was increased to 25, to account for grouping of multiple
victims under USSG § 3D1.4. In light of Booker, we conclude that
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Jenkins’ sentence was improperly enhanced based upon facts that
were not proven to the jury and was imposed under the mandatory
guidelines scheme, constituting plain error.* See Olano, 507 U.S.
725 at 731-32; Hughes, 401 F.3d at 546. We therefore affirm
Jenkins’ convictions, but remand for resentencing consistent with
this opinion. 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 IN PART, AND REMANDED
*
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 Jenkins’ sentencing.
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