UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 03-4972
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
MICHAEL BURNS,
Defendant - Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Beckley. David A. Faber, Chief
District Judge. (CR-03-30)
Submitted: August 17, 2005 Decided: September 19, 2005
Before MICHAEL, TRAXLER, and KING, Circuit Judges.
Affirmed in part; vacated and remanded in part by unpublished per
curiam opinion.
Leah P. Macia, BAILEY & GLASSER, LLP, Charleston, West Virginia,
for Appellant. Kasey Warner, United States Attorney, Paula S.
Klotzbach, Assistant United States Attorney, Charleston, West
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Michael Burns pleaded guilty to one count of distribution
of methamphetamine, in violation of 21 U.S.C. § 841(a)(1) (2000),
and was sentenced to 126 months in prison. Burns now appeals. His
attorney has filed a brief pursuant to Anders v. California, 386
U.S. 738 (1967), stating that, in her opinion, there are no
meritorious issues for review. Subsequent to the Supreme Court’s
decision in Blakely v. Washington, 542 U.S. 296 (2004), counsel
filed a supplemental brief asserting that Burns’ sentence violated
the Sixth Amendment under Blakely. Burns later filed a pro se
supplemental brief, contending that his sentence violated the Sixth
Amendment under United States v. Booker, 125 S. Ct. 738 (2005). We
affirm Burns’ conviction but vacate his sentence and remand for
resentencing in light of Booker and Blakely.
I
Pursuant to a written plea agreement, Burns pleaded
guilty to distributing methamphetamine on April 29, 2002. The
transcript of Burns’ plea colloquy discloses full compliance with
Rule 11 of the Federal Rules of Criminal Procedure. Notably, he
admitted that he sold 1.03 grams of methamphetamine to a
confidential informant. Burns stated that he understood that the
maximum sentence to which he was exposed was twenty years and that
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his sentence would be determined under the federal sentencing
guidelines.
Burns’ presentence report held him accountable for a
marijuana equivalency1 of 151.37 kilograms, for a base offense
level of 26. See U.S. Sentencing Guidelines Manual § 2D1.1(c)(7)
(2002). Two levels were added for possession of a firearm, see
USSG § 2D1.1(b)(1), and obstruction of justice, see USSG § 3C1.1,
respectively. With an adjusted offense level of 30 and a criminal
history category of III, Burns’ guideline range was 12 to 151
months.
At sentencing, Burns objected to the attribution to him
of sixty grams of methamphetamine about which Darrell Jones
testified before the grand jury, to one gram of the drug found on
Jones’ person, and to .67 grams found on Darrell Blankenship’s
person. Burns did not object to the attribution to him of the
weight of drugs that were involved in six controlled purchases,
including the April 29 sale to the informant, or to drugs that were
found in a cooler at his residence. The marijuana equivalency of
the drugs to which Burns did not object was 28.03 kilograms.
The district court overruled the objection as to the
sixty grams of methamphetamine about which Jones testified,
1
Controlled substances attributed to Burns as relevant
conduct included methamphetamine, marijuana, and oxycodone. The
weight of the oxycodone and methamphetamine was converted to a
marijuana equivalency.
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sustained the objection to the methamphetamine that was taken from
Blankenship, and counted only .58 grams of the methamphetamine that
was taken from Jones’ person. The marijuana equivalency for which
the court therefore held Burns accountable had no impact on the
base offense level, which remained 26.
Burns conceded at sentencing that he possessed a firearm
in connection with his drug trafficking but disagreed that this
fact warranted the two-level increase under USSG § 2D1.1(b)(1). The
district court overruled his objection, based in part upon the
testimony of Terry White, Burns’ wife, who stated that Burns
obtained the gun to use as protection against anyone who might try
to steal drugs or drug proceeds.
Finally, the district court overruled Burns’ objection to
the increase for obstruction of justice for threatening to harm
White if she cooperated with authorities. White testified that
Burns had beaten her in the past and that he threatened to harm her
if she incriminated him. A videotape of White, showing bruises
that she once sustained at Burns’ hands, was admitted into
evidence. The district court found that White was a credible
witness and that the increase was warranted.
The court concluded that Burns’ offense lever was 30 and
his criminal history category was III, for a guideline range of 121
to 151 months. Burns received a 126-month sentence.
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II
Burns first contends that admission of the videotape was
unduly prejudicial. This argument is without merit. The Federal
Rules of Evidence do not generally apply at sentencing. Fed. R.
Evid. 1101(d)(3). Further, there is no limitation on the
information about a defendant that a court may consider in
sentencing a defendant. 18 U.S.C. § 3661 (2000). Here, the
district court acted appropriately when it permitted the
introduction of the videotape. We note that, even without this
evidence, White’s testimony was strong enough to establish that the
increase for obstruction of justice was proper.
III
In both the formal supplemental brief and Burns’ pro se
brief, Burns contends that his sentence violates the Sixth
Amendment under Booker and Blakely. In Booker, the Supreme Court
held that the mandatory guidelines scheme which provided for
sentence enhancements found by the court violated the Sixth
Amendment. 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. Booker, 125 S. Ct. at 746-48, 755-56
(Stevens, J.), 756-57 (Breyer, J.).
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Subsequently, in United States v. Hughes, 401 F.3d 540,
546 (4th Cir. 2005), we held that a sentence that was imposed under
the pre-Booker mandatory sentencing scheme and was enhanced based
upon facts found by the court, not by the jury or admitted by the
defendant, constitutes plain error that affects that defendant’s
substantial rights. In the guilty plea context, reversal is
warranted when the sentence exceeds the maximum allowed based on
the facts established by the plea or otherwise admitted by the
defendant and the record does not disclose what discretionary
sentence the district court would have imposed under an advisory
guideline scheme. Id. at 546-47, 556.
Here, neither the indictment nor the plea agreement
identified the amount of drugs involved in the offense. At the
plea colloquy, Burns admitted that he sold 1.03 grams of
methamphetamine to an informant on April 29, 2002. At sentencing,
he admitted that he should be held accountable for the April 29
controlled purchase, the weight of methamphetamine involved in five
other controlled purchases, and the weight of drugs
(methamphetamine, oxycodone, and marijuana) found in a cooler at
his residence. The marijuana equivalency of the drugs for which he
conceded responsibility results in a base offense level that is
markedly less than that assigned at sentencing. Under Booker, this
error alone establishes that Burns’ sentence of 126 months stood
well above the properly calculated guideline range. In accordance
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with Hughes, we recognize this plain error, vacate the sentence,
and remand for resentencing.2
IV
Our review of the entire record discloses no grounds for
reversal of the conviction, which we accordingly affirm. Burns’
sentence is vacated as violating Booker, and the matter is remanded
for resentencing. In accordance with Anders, we have examined the
entire record and find no other meritorious issues for appeal.
This court requires that counsel inform her 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 a petition would be frivolous,
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.
AFFIRMED IN PART;
VACATED AND REMANDED IN PART
2
As in Hughes, we express no criticism of the district court,
which sentenced Burns in accordance with the law as it existed
prior to Booker.
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