UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4246
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
SOLOMON LOUIS BROOKS, a/k/a Anthony Jerome
Foster, a/k/a Alvin, a/k/a Darvis Shamburger,
a/k/a Berry Davis,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Claude M. Hilton, Chief
District Judge. (CR-03-374-A)
Submitted: August 1, 2005 Decided: August 30, 2005
Before WILLIAMS, TRAXLER, and SHEDD, Circuit Judges.
Affirmed in part, vacated in part, and remanded by unpublished per
curiam opinion.
Gregory B. English, ENGLISH & SMITH, Alexandria, Virginia, for
Appellant. Paul J. McNulty, United States Attorney, Dennis M.
Kennedy, Assistant United States Attorney, Alexandria, Virginia,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Solomon Louis Brooks was convicted by a jury of
interstate transportation of stolen motor vehicles (two counts), 18
U.S.C. § 2312 (2000), possession/concealment of stolen motor
vehicles (two counts), 18 U.S.C. § 2313 (2000), and false
representation of social security number (one count), 42 U.S.C.
§ 408(a)(7)(b) (2000). He was sentenced to eighty-four months’
imprisonment. On appeal, he argues that the district court erred
in allowing the prosecution to introduce evidence regarding his use
of aliases. He further seeks remand for resentencing on the ground
that his sentence violates his Sixth Amendment rights under United
States v. Booker, 125 S. Ct. 738 (2005). For the following
reasons, we affirm Brooks’ conviction and vacate and remand for
resentencing.
Brooks first argues that the district court erred in
allowing the Government to present evidence of his use of false
names in connection with the charged conduct. Review of a district
court’s determination of the admissibility of evidence under Rule
404(b) is for abuse of discretion. See United States v. Queen, 132
F.3d 991, 995 (4th Cir. 1997). A district court will not be found
to have abused its discretion unless its decision to admit evidence
under Rule 404(b) was arbitrary or irrational. United States v.
Haney, 914 F.2d 602, 607 (4th Cir. 1990). Where testimony is
admitted as to acts intrinsic to the crime charged, and is not
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admitted solely to demonstrate bad character, it is admissible.
United States v. Chin, 83 F.3d 83, 88 (4th Cir. 1996). Acts are
intrinsic when they are “inextricably intertwined or both acts are
part of a single criminal episode or the other acts were necessary
preliminaries to the crime charged.” Id. (quoting United States v.
Lambert, 995 F.2d 1006, 1007 (10th Cir. 1993)). In addition,
evidence of other crimes or uncharged conduct is “not considered
‘other crimes’” for Rule 404(b) purposes if it “‘arose out of the
same . . . series of transactions as the charged offense, . . . or
if it is necessary to complete the story of the crime [on] trial.’”
United States v. Kennedy, 32 F.3d 876, 885 (4th Cir. 1994) (quoting
United States v. Towne, 870 F.2d 880, 886 (4th Cir. 1989)). We
find no abuse of discretion in the court’s admission of the
evidence.
Citing Booker, Brooks also argues that his sentence was
imposed in violation of his Sixth Amendment right to a jury. This
issue is raised on appeal for the first time and, thus, is reviewed
for plain error. United States v. Hughes, 401 F.3d 540, 547 (4th
Cir. 2005). The district court sentenced Brooks under the federal
sentencing guidelines to eighty-four months’ imprisonment. This
sentence included a twelve-level enhancement for the amount of loss
exceeding $200,000, and a two-level enhancement for being in the
business of receiving or selling stolen property. Brooks contests
the application of these enhancements because the facts underlying
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the enhancements were found by the district court by a
preponderance of the evidence and were neither charged in the
indictment nor proven by the jury beyond a reasonable doubt.
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.
125 S. Ct. at 746, 750 (Stevens, J., opinion of the Court). The
Court remedied the constitutional violation by making the
Guidelines advisory through the removal of two statutory provisions
that had rendered them mandatory. Id. at 746 (Stevens, J., opinion
of the Court); id. at 756-57 (Breyer, J., opinion of the Court).
Subsequently, we held that sentencing a defendant to a
significantly longer term of imprisonment than the district court
could have imposed based solely on the facts found by the jury or
admitted by the defendant, constituted plain error. Hughes, 401
F.3d at 547-56.
Here, a sentence based solely on the facts found by the
jury would have been at least sixty months less than the term of
imprisonment to which Brooks was sentenced. Accordingly, in light
of Booker and Hughes, we find that the district court plainly erred
in sentencing Brooks.1 Therefore, we affirm Brooks’ conviction,
1
Just as we noted in Hughes, “[w]e of course offer no
criticism of the district judge, who followed the law and procedure
in effect at the time” of Brooks’ sentencing. 401 F.3d at 545 n.4.
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vacate his sentence, and grant his motion to remand for
resentencing consistent with Booker and Hughes.2 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
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”).
2
Although the Guidelines no longer are 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
(Breyer, J., opinion of the Court). On remand, the district court
should first determine the appropriate sentencing range under the
Guidelines, making all factual findings appropriate for that
determination. Hughes, 401 F.3d at 546. 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. Hughes, 401 F.3d at 546. If that sentence falls outside
the Guidelines range, the court should explain its reason for the
departure as required by 18 U.S.C.A. § 3553(c)(2) (West 2000 &
Supp. 2005). Hughes, 401 F.3d at 546. The sentence must be
“within the statutorily prescribed range and . . . reasonable.”
Id. at 547.
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