UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4318
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JUANITA VALERIO, a/k/a Maria,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. T. S. Ellis, III, District
Judge. (CR-03-505)
Submitted: August 24, 2005 Decided: September 22, 2005
Before LUTTIG, MOTZ, and TRAXLER, Circuit Judges.
Affirmed in part, vacated in part, and remanded by unpublished per
curiam opinion.
John C. Kiyonaga, Alexandria, Virginia, for Appellant. Paul J.
McNulty, United States Attorney, Kelli H. Ferry, Special Assistant
United States Attorney, Michael J. Elston, Assistant United States
Attorney, Alexandria, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Juanita Valerio appeals the 135-month sentence imposed
after she pled guilty, without a written plea agreement, to
conspiracy to distribute 500 grams or more of cocaine, in violation
of 21 U.S.C. § 841(a)(1) (2000). Citing Blakely v. Washington, 542
U.S. 296 (2004), Valerio asserts on appeal that her sentence
violates the Sixth Amendment but does not challenge the validity of
her conviction. We affirm Valerio’s conviction, vacate Valerio’s
sentence, and remand for resentencing.
Valerio contends that her sentence is unconstitutional in
light of Blakely.1 Because Valerio did not raise this issue in the
district court, we review for plain error. See United States v.
Hughes, 401 F.3d 540, 547 (4th Cir. 2005). To demonstrate plain
error, Valerio must establish that error occurred, that it was
plain, and that it affected her substantial rights. Id. at 547-48.
If a defendant satisfies these requirements, this court’s
“discretion is appropriately exercised only when failure to do so
would result in a miscarriage of justice, such as when the
1
The Government asserts that Valerio waived the right to
appeal her sentence in a plea agreement executed before her initial
plea hearing. Valerio, however, did not plead guilty pursuant to
that agreement, and the agreement was never accepted by the
district court. Thus, the waiver of appellate rights provision
does not preclude Valerio from appealing her sentence. See
Mabry v. Johnson, 467 U.S. 504, 507-08 (1984) (“A plea bargain
standing alone is without constitutional significance; in itself it
is a mere executory agreement which, until embodied in the judgment
of a court, does not deprive an accused of liberty or any other
constitutionally protected interest.”).
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defendant is actually innocent or the error seriously affects the
fairness, integrity or public reputation of judicial proceedings.”
Id. at 555 (internal quotation marks and citation omitted).
In United States v. Booker, 125 S. Ct. 738 (2005), the
Supreme Court applied the rationale in Blakely to the federal
sentencing guidelines and held that the mandatory manner in which
the guidelines required courts to impose sentencing enhancements
based on facts found by the court by a preponderance of the
evidence violated the Sixth Amendment. Id. 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 Valerio under the
mandatory federal sentencing guidelines and applied enhancements
based on facts found by a preponderance of the evidence.
Specifically, the court attributed to Valerio at least 3.5
kilograms but less than five kilograms of cocaine and established
a base offense level of thirty. See U.S. Sentencing Guidelines
Manual (“USSG”) § 2D1.1(c)(5) (2003). The court also imposed a
three-level enhancement based upon Valerio’s managerial role in the
conspiracy, see USSG § 3B1.1(b), a two-level enhancement for
obstruction of justice, see USSG § 3C1.1, and a two-level downward
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adjustment for acceptance of responsibility, see USSG § 3E1.1.
These findings yielded a total offense level of thirty-three. With
a criminal history category of I, the applicable guideline range
was 135 to 168 months of imprisonment, and the court sentenced
Valerio to the bottom of the guideline range.
Using only the amount of drugs charged in the indictment
and without the enhancements for role in the offense and
obstruction of justice, Valerio’s offense level, for purposes of
determining whether a Sixth Amendment violation occurred, would
have been twenty-six. See USSG § 2D1.1(c)(7); United States v.
Evans, 416 F.3d 298, 300 n.4 (4th Cir. 2005). The resulting
guideline range would be sixty-three to seventy-eight months of
imprisonment. USSG Ch. 5, Pt. A (Sentencing Table). In light of
Booker and Hughes, we find that the district court plainly erred in
sentencing Valerio and that the error warrants correction.2
Accordingly, we affirm Valerio’s conviction, vacate
Valerio’s sentence, and remand for resentencing.3 We dispense with
2
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 Valerio’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
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
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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
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.
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