UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 03-4202
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
TREMAINE KENDRICK JETER, a/k/a Toby,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Spartanburg. G. Ross Anderson, Jr., District
Judge. (CR-02-248)
Submitted: August 3, 2005 Decided: September 23, 2005
Before MOTZ and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Thomas N. Cochran, Assistant Federal Public Defender, Greensboro,
North Carolina, for Appellant. Jonathan S. Gasser, Acting United
States Attorney, E. Jean Howard, Assistant United States Attorney,
Greenville, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Tremaine Kendrick Jeter appeals his conviction on a
guilty plea and sentence on a charge of conspiracy to possess with
intent to distribute crack cocaine, in violation of 18 U.S.C. § 846
(2000). After conducting a thorough Fed. R. Crim. P. 11 colloquy,
the district court found Jeter guilty. The probation officer who
prepared Jeter’s presentence investigation report (“PSR”) assigned
a total offense level to Jeter of thirty and a criminal history
category of V, with a resultant guideline range of 151-188 months’
imprisonment. Jeter did not object at the sentencing hearing. On
February 12, 2003, the district court sentenced Jeter in conformity
with the assignments reflected in the PSR to 151 months’
imprisonment (the low end of the applicable guideline range), a
five-year term of supervised release, and ordered payment of a $100
special assessment.
Jeter’s sole issue on direct appeal1 is that his sentence
violates United States v. Booker, 125 S. Ct. 738 (2005), because at
the time of Jeter’s sentencing hearing there existed a disparity
between the sentence he faced and that faced by an allegedly
1
Jeter’s former appellate counsel filed a brief pursuant to
Anders v. California, 386 U.S. 738 (1967), on May 27, 2003. This
court, in an unpublished per curiam opinion filed on September 22,
2003, affirmed Jeter’s conviction and sentence. On September 16,
2004, Jeter filed a motion to recall the mandate. By Order dated
September 22, 2004, this court granted Jeter’s motion, recalled its
mandate, and vacated its opinion, based on a clerical error. This
court later appointed the Federal Public Defender as Jeter’s new
appellate counsel by Order dated October 1, 2004.
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equally culpable co-defendant, and that under pre-Booker circuit
precedent, the district court was prohibited from departing under
the mandatory guidelines based on such a disparity.2 He alleges
that he was prejudiced by the district court’s plain error in
failing to consider the provisions of 18 U.S.C. § 3553(a) before
imposing sentence and in treating the guidelines as mandatory. He
seeks resentencing. We find no merit to Jeter’s specific claim on
appeal.
Jeter’s contention that the district court erred by
sentencing him under an unconstitutional mandatory sentencing
scheme is governed by United States v. Booker, 125 S. Ct. 738
(2005), in which the Supreme Court held that Blakely v. Washington,
542 U.S. 296 (2004), applies to the federal sentencing guidelines
and that the mandatory guidelines scheme which provided for
sentence enhancements based on facts found by the court 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 and excising the statutory
provisions that mandate sentencing and appellate review under the
guidelines, thus making the guidelines advisory. Id. at 756-57
(Breyer, J., opinion of the Court). Subsequently, in United States
2
Jeter’s guidelines sentence was not determined by any facts
not found beyond a reasonable doubt; therefore, his sentence does
not implicate any violation of the Sixth Amendment. His only
objection is to the district court’s mandatory use of the
guidelines in determining his sentence.
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v. Hughes, 401 F.3d 540 (4th Cir. 2005), this court held that a
sentence imposed under the pre-Booker mandatory sentencing scheme
and enhanced based on facts found by the court, not by a jury (or,
in a guilty plea case, admitted by the defendant), constitutes
plain error that affects the defendant’s substantial rights and
warrants reversal under Booker when the record does not disclose
what discretionary sentence the district court would have imposed
under an advisory guideline scheme. Hughes, 401 F.3d at 546-56.
Booker states that, in reviewing sentences that do not
involve a Sixth Amendment violation, appellate courts may apply the
plain error and harmless error doctrines in determining whether
resentencing is required. Booker, 125 S. Ct. at 769; see Fed. R.
Crim. P. 52(a) (appellate court may disregard any error that does
not affect substantial rights). Because Jeter did not raise
sentencing objections before the district court, this court reviews
his arguments for plain error. To establish plain error: (1)
there must be an error; (2) the error must be plain; and (3) the
error must affect substantial rights. United States v. Olano, 507
U.S. 725, 732-34 (1993). If the three elements of the plain error
standard are met, this court may exercise its discretion to notice
error only if the error seriously affects “the fairness, integrity,
or public reputation of judicial proceedings.” Id. at 736
(citation omitted).
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Under this standard, although Jeter is correct that the
district court committed error in treating the guidelines as
mandatory, see Hughes, 401 F.3d at 547-48,3 we find that he is not
entitled to relief. We recently held that in a plain error
context, the error of sentencing under the mandatory guidelines
regime did not warrant a presumption of prejudice nor was it a
structural error. United States v. White, 405 F.3d 208, 224 (4th
Cir. 2005). Rather, because Jeter failed to object to his sentence
below, the burden is on him to establish prejudice. Id. at 223.
Moreover, to establish prejudice in the context of plain error
under White, Jeter must demonstrate a nonspeculative basis in this
record for concluding the district court would have sentenced him
to a lesser sentence if the sentencing guidelines were advisory.
While Jeter contends that had the district court been
free to consider the § 3553(a) factors, there was a “substantial
likelihood” that the district court would have sentenced him based
on an offense level of twenty-six, like his similarly situated co-
defendant, rather than at a level of thirty, and that it sentenced
him to a longer sentence than it “may” have if the guidelines were
not mandatory, there is no statement by the district court in the
record to support such a speculative and conclusory argument. The
3
See also United States v. White, 405 F.3d 208, 216-17 (4th
Cir. 2005) (“even in the absence of a Sixth Amendment violation,
the imposition of a sentence under the former mandatory guidelines
regime rather than under the advisory regime outlined in Booker is
[plain] error”).
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fact of the matter is that Jeter and his co-defendant were not
similarly situated, because Jeter initially declined the plea
originally offered by the Government which contained a base offense
level stipulation of twenty-six and his co-defendant did not.4
Jeter’s ultimate decision to take a different, less favorable,
offer from the Government, resulting in a higher base offense level
alone puts him in a different situation than that of his co-
defendant, even assuming they were equally criminally culpable, as
Jeter contends.
As nothing in the record suggests the error affected the
court’s ultimate determination of Jeter’s sentence, and because the
burden of so proving lies with Jeter, see White, 405 F.3d at 223,
Jeter cannot satisfy the prejudice requirement of the plain error
standard and hence cannot establish that the district court’s error
in sentencing him pursuant to a mandatory guidelines scheme
affected his substantial rights such that resentencing is
necessary. Accordingly, we affirm Jeter’s conviction and sentence.
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
4
Jeter asserts that he was following the ill-advised
recommendation of a jail-house lawyer with whom he was housed at
the time when he turned down the Government’s initial plea offer.
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