UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4855
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
TRAVIS MCDANIEL,
Defendant - Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Charleston. Joseph Robert Goodwin,
District Judge. (CR-04-39)
Submitted: July 27, 2005 Decided: August 24, 2005
Before NIEMEYER, WILLIAMS, and DUNCAN, 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Affirmed in part, vacated in part, and remanded by unpublished per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, George H. Lancaster, Jr., Assistant Federal
Public Defender, Charleston, West Virginia, for Appellant. Kasey
Warner, United States Attorney, Joshua C. Hanks, 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Unpublished opinions are not binding precedent in this circuit.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:
Travis McDaniel pled guilty, without a plea agreement, to
possessing a stolen firearm under 18 U.S.C. § 922(j) (2000). His
guideline range was six to twelve months of imprisonment. The
district court, however, did not sentence McDaniel to a term of
imprisonment. Rather, the court sentenced McDaniel to sixty months
of probation, conditioned on a six-month term of home confinement
under U.S. Sentencing Guidelines Manual § 5B1.1(a)(2) (2003). On
appeal, McDaniel argues that the district court was not required to
impose the home confinement condition for his sentence of
probation.
McDaniel clearly objected in the district court to the
mandatory nature of the Federal Sentencing Guidelines, relying on
the Supreme Court’s decision in Blakely v. Washington, 542 U.S. 296
(2004), as authority for his position. Since the parties have
filed their briefs, the Supreme Court has expanded its decision in
Blakely. See United States v. Booker, 125 S. Ct. 738 (2005). In
Booker the Supreme Court held 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. Id. at
746, 750 (Stevens, J., opinion of the Court). The Court remedied
the constitutional violation by severing two statutory provisions,
18 U.S.C.A. § 3553(b)(1) (West Supp. 2005) (requiring sentencing
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courts to impose a sentence within the applicable guideline range),
and 18 U.S.C.A. § 3742(e) (West 2000 & Supp. 2005) (setting forth
appellate standards of review for guideline issues), thereby making
the guidelines advisory. Booker, 125 S. Ct. at 756-67 (Breyer, J.,
opinion of the Court). This remedial scheme applies to any
sentence imposed under the mandatory guidelines, regardless of
whether the sentence violates the Sixth Amendment. United
States v. Hughes, 401 F.3d 540, 547 (4th Cir. 2005) (citing Booker,
125 S. Ct. at 769 (Breyer, J., opinion of the Court)).
Because McDaniel timely objected below to the mandatory
imposition of the Guidelines to his sentence, we review for harmless
error.1 The Government bears the burden in harmless error review of
showing beyond a reasonable doubt that the error did not affect the
defendant’s substantial rights. United States v. Mackins, 315 F.3d
399, 405 (4th Cir. 2003). The Government does not meet this burden
because the district court gave no indication of how it would have
sentenced McDaniel if it had appreciated that it was not bound by
the guidelines. We would have to speculate that the district
court’s error in thinking itself bound by the guidelines did not
1
Indeed, the district court agreed at the sentencing hearing
to stay execution of McDaniel’s home confinement pending appeal of
the issue. (J.A. 19).
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affect the sentence. In light of Booker, we vacate McDaniel’s
sentence and remand the case for resentencing.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. See Hughes, 401 F.3d at 546 (applying Booker on plain
error review). The court should consider this sentencing range
along with the other factors described in 18 U.S.C.A. § 3553(a)
(West 2000 & Supp. 2005), and then impose a sentence. Id. & n.5.
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 Supp. 2005). Id. The sentence must be
“within the statutorily prescribed range and . . . reasonable.” Id.
at 547.
Accordingly, we affirm McDaniel’s conviction, which he
does not contest, but vacate and remand for resentencing in
accordance with this opinion. We dispense with oral argument
because the facts and legal contentions are adequately presented in
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 McDaniel’s sentencing.
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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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