UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4510
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
RICARDO DEON LITTLE,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. James A. Beaty, Jr.,
District Judge. (CR-03-434)
Submitted: August 22, 2005 Decided: September 15, 2005
Before WILKINSON, WILLIAMS, and MOTZ, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
Urs Roland Gsteiger, HORTON & GSTEIGER, P.L.L.C., Winston-Salem,
North Carolina, for Appellant. Anna Mills Wagoner, United States
Attorney, Lisa B. Boggs, 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Unpublished opinions are not binding precedent in this circuit.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:
Ricardo Deon Little pled guilty pursuant to a plea
agreement to one count of possession of a firearm by a convicted
felon in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2) (2000).
He was sentenced to sixty-four months in prison and three years of
supervised release. Little appeals, claiming his sentence was
imposed in violation of Blakely v. Washington, 542 U.S. 296 (2004).
We vacate his sentence and remand for resentencing.
In United States v. Booker, 125 S. Ct. 738 (2005), the
Supreme Court applied the rationale of Blakely to the federal
sentencing guidelines and held that the mandatory guidelines scheme
that provided for sentence enhancements based on facts found by the
court by a preponderance of the evidence violated the Sixth
Amendment. Booker, 125 S. Ct. at 746-48, 755-56 (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. 2004) (requiring sentencing courts to impose
a sentence within the applicable guidelines range), and 18 U.S.C.A.
§ 3742(e) (West 2000 & Supp. 2004) (setting forth appellate
standards of review for guideline issues), thereby making the
guidelines advisory. United States v. Hughes, 401 F.3d 540, 546
(4th Cir. 2005) (citing Booker, 125 S. Ct. at 757, 764 (Breyer, J.,
opinion of the Court)).
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Because Little raises this claim for the first time on
appeal, we review it for plain error. See Hughes, 401 F.3d at 547.
We find plain error when: (1) there was error; (2) it was plain;
and (3) it affected the defendant’s substantial rights. United
States v. Olano, 507 U.S. 725, 732 (1993). If these conditions are
met, we may then exercise our discretion to notice the error, but
only if it “seriously affects the fairness, integrity or public
reputation of judicial proceedings.” Id. (internal quotation marks
and alterations omitted).
We conclude that the imposition of a four-level
enhancement for possession of a firearm by a convicted felon in
connection with another felony constituted plain error in violation
of the Sixth Amendment under Booker, because the facts supporting
the firearm enhancement were not alleged in the indictment or
admitted by Little.1 Without this enhancement, Little’s total
offense level would be twenty-two and his guideline range would be
51 to 63 months in prison.2 Because the sixty-four month sentence
1
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 Little’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”).
2
This range does not take into account the proposed three-
level reduction for acceptance of responsibility. See United
States v. Evans, 416 F.3d 298, 300-01 & n.4 (4th Cir. 2005) (noting
that, in determining whether Sixth Amendment error occurred,
sentence imposed must be compared to permissible guideline range
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imposed exceeds the guidelines range calculated without the four-
level enhancement, Little’s sentence constitutes plain error that
affects his substantial rights under Booker and Hughes.
We therefore vacate Little’s sentence and remand for
resentencing consistent with Booker and its progeny.3 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.
VACATED AND REMANDED
before adjusting for acceptance of responsibility).
3
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.
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), 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). Id. The
sentence must be “within the statutorily prescribed range and . .
. reasonable.” Id. at 547 (citation omitted).
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