UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4953
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JAMES EDWARD BYRD, III,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Richard L. Voorhees,
District Judge. (CR-01-178)
Submitted: July 29, 2005 Decided: September 15, 2005
Before TRAXLER and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed in part, vacated in part, and remanded by unpublished per
curiam opinion.
Randolph M. Lee, Charlotte, North Carolina, for Appellant.
Gretchen C. F. Shappert, United States Attorney, Charlotte, North
Carolina; Amy E. Ray, Assistant United States Attorney, Asheville,
North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
James Edward Byrd, III, appeals his conviction and
360-month sentence imposed after the jury found him guilty of
conspiracy to distribute and possess with intent to distribute more
than fifty grams of crack cocaine, in violation of 21 U.S.C. § 846
(2000). He contends that the evidence was insufficient to convict
him and, citing Blakely v. Washington, 542 U.S. 296 (2004), and
United States v. Booker, 125 S. Ct. 738 (2005), asserts that his
sentence is unconstitutional. We affirm Byrd’s conviction, vacate
Byrd’s sentence, and remand for resentencing.
Byrd contends that the evidence did not establish that he
entered into an agreement to distribute crack cocaine with Terry
Lamont Huntley, a charged co-conspirator. We review de novo the
district court’s denial of a motion for judgment of acquittal filed
pursuant to Fed. R. Crim. P. 29. United States v. Lentz, 383 F.3d
191, 199 (4th Cir. 2004), cert. denied, 125 S. Ct. 1828 (2005).
Where, as here, the motion was based on insufficient evidence,
“[t]he verdict of a jury must be sustained if there is substantial
evidence, taking the view most favorable to the Government, to
support it.” Glasser v. United States, 315 U.S. 60, 80 (1942). We
have reviewed the trial testimony in the joint appendix and are
convinced that the evidence was sufficient to convict Byrd. See
United States v. Strickland, 245 F.3d 368, 384-85 (4th Cir. 2001)
(discussing elements of offense); United States v. Mills, 995 F.2d
- 2 -
480, 485 n.1 (4th Cir. 1993) (“[E]vidence of a buy-sell
transaction, when coupled with a substantial quantity of drugs,
would support a reasonable inference that the parties were
coconspirators.”).
Byrd also asserts that his sentence is unconstitutional
in light of Blakely and Booker. Because Byrd preserved this issue
by objecting to the presentence report based upon Blakely, our
review is de novo. See United States v. Mackins, 315 F.3d 399, 405
(4th Cir. 2003) (“If a defendant has made a timely and sufficient
Apprendi[1] sentencing objection in the trial court, and so
preserved his objection, we review de novo.”). When a defendant
preserves a Sixth Amendment error, we “must reverse unless we find
this constitutional error harmless beyond a reasonable doubt, with
the Government bearing the burden of proving harmlessness.” Id.
(citations omitted); see United States v. White, 405 F.3d 208, 223
(4th Cir. 2005) (discussing difference in burden of proving that
error affected substantial rights under harmless error standard in
Fed. R. App. P. 52(a), and plain error standard in Fed. R. App. P.
52(b)).
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.
1
Apprendi v. New Jersey, 530 U.S. 466 (2000).
- 3 -
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 756-67 (Breyer, J., opinion of the Court).
Here, the district court sentenced Byrd under the
mandatory federal sentencing guidelines and enhanced his sentence
based upon facts found by a preponderance of the evidence.
Specifically, the court established a base offense level of thirty-
six based on a finding that Byrd was responsible for 874 grams of
crack cocaine. See U.S. Sentencing Guidelines Manual (“USSG”)
§ 2D1.1(c)(2) (2003). The court also increased the base offense
level by two levels under USSG § 3A1.2(a). Under Booker, we find
that the 360-month sentence Byrd received violates the Sixth
Amendment. We also conclude that the error is not harmless in
light of the alternate sentence announced by the district court
before Booker was decided.2
Accordingly, we affirm Byrd’s conviction, vacate Byrd’s
sentence, and remand for resentencing.3 We dispense with oral
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 Byrd’s sentencing.
3
Although the guidelines are no longer mandatory, Booker makes
clear that a sentencing court must still “consult [the]
[g]uidelines and take them into account when sentencing.” 125 S.
Ct. at 767 (Breyer, J., opinion of the Court). On remand, the
- 4 -
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
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
reasons 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.
- 5 -