UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4203
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
WILLIAM RANDOLPH UMSTEAD,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. N. Carlton Tilley, Jr.,
Chief District Judge. (CR-04-208)
Submitted: August 24, 2005 Decided: September 13, 2005
Before WILKINSON, MICHAEL, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Louis C. Allen, III, Federal Public Defender, Gregory Davis,
Assistant Federal Public Defender, Greensboro, North Carolina, for
Appellant. Anna Mills Wagoner, United States Attorney, Paul
Alexander Weinman, 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Unpublished opinions are not binding precedent in this circuit.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:
William Randolph Umstead appeals his sixty-month prison
sentence following a guilty plea to conspiracy to make, possess and
utter counterfeit securities in violation of 18 U.S.C. § 371. On
appeal, Umstead’s counsel filed a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), stating there were no meritorious
issues for appeal but addressing the legality of the sentence in
light of United States v. Booker, 125 S. Ct. 738 (2005). Umstead
has also filed a pro se supplemental brief, raising issues under
Booker and other issues. The Government has elected not to file a
brief in response. Finding no reversible error, we affirm.
On appeal, Umstead does not contest the validity of his
conviction. Umstead asserts the district court erred under Booker
in sentencing him by imposing an eight-level enhancement for amount
of loss, a two-level enhancement for an offense involving ten or
more victims, and a four-level role enhancement for being an
organizer or leader of a criminal activity involving five or more
participants. Umstead also asserts the district court erred under
Booker in applying the sentencing guidelines as mandatory.
In Booker, the Supreme Court held the mandatory
guidelines scheme that provided for sentence enhancements based on
facts found by the court violated the Sixth Amendment. Booker, 125
S. Ct. at 746-48, 755-56. The Court remedied the constitutional
violation by severing and excising the statutory provisions that
- 2 -
mandate sentencing and appellate review under the guidelines,
thereby making the guidelines advisory. Id. at 756-57.
Umstead preserved error under Booker for appellate review
by making both broad and specific objections to his guidelines
enhancements under Blakely v. Washington, 542 U.S. 296 (2004).
Accordingly, our review is de novo, subject to a harmless error
analysis. See Booker, 125 S. Ct. at 769 (noting that appellate
courts may apply the plain error and harmless error doctrines in
determining whether resentencing is required); Fed. R. Crim. P.
52(a) (stating that an appellate court may disregard any error that
does not affect substantial rights). 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.),
cert. denied, 538 U.S. 1045 (2003); United States v. Stokes, 261
F.3d 496, 499 (4th Cir. 2001). Substantial rights are affected
when the error alters the outcome of the proceedings. Stokes, 261
F.3d at 499. An error in sentencing may be disregarded if the
reviewing court is certain that any such error “did not affect the
district court’s selection of the sentence imposed.” Williams v.
United States, 503 U.S. 193, 203 (1992).
The district court imposed a total of fourteen offense
level enhancements using facts found by the court. Under Booker,
that sentence violated the Sixth Amendment. Also, the district
- 3 -
court erred in treating the guidelines as mandatory. However, the
district court sentenced Umstead to the maximum sentence allowed
under both the guidelines and the statute of conviction and fully
explained its reasons for imposing the maximum sentence allowed.
Furthermore, the district court imposed an identical alternative
sentence in the event the guidelines did not apply. After
carefully reviewing the record, we conclude any error under Booker
in Umstead’s sentence did not affect the district court’s ultimate
determination of the sentence. We therefore conclude that any
error was harmless. We also reject in full the arguments made by
Umstead in his pro se supplemental brief.
In accordance with Anders, we have reviewed the entire
record in this case and have found no meritorious issues for
appeal. We therefore affirm Umstead’s conviction and sentence.
This court requires that counsel inform his client, in writing, of
his right to petition the Supreme Court of the United States for
further review. If the client requests that a petition be filed,
but counsel believes that such petition would be frivolous, then
counsel may move in this court for leave to withdraw from
representation. Counsel’s motion must state that a copy thereof
was served on the client. 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.
- 4 -
AFFIRMED
- 5 -