UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4084
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JOSEPH PULLINS,
Defendant - Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Charleston. David A. Faber, Chief
District Judge. (CR-04-126)
Submitted: August 31, 2005 Decided: September 30, 2005
Before MOTZ, TRAXLER, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Carl J. Dascoli, Jr., MICHAEL R. CLINE LAW OFFICES, Charleston,
West Virginia, for Appellant. Kasey Warner, United States
Attorney, Edward J. Kornish, Special 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Unpublished opinions are not binding precedent in this circuit.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:
Joseph Pullins appeals from his twenty-seven month prison
sentence for conspiracy to distribute cocaine in violation of 21
U.S.C. § 846 (2000).1 Finding no reversible error, we affirm.
Pullins claims that the district court improperly
sentenced him when it imposed a sentence greater than the maximum
authorized by the facts in the indictment to which he pled guilty.
Because Pullins failed to raise this claim below, we must review it
for plain error. United States v. Hughes, 401 F.3d 540, 547 (4th
Cir. 2005). Pullins pled guilty to conspiracy to distribute
cocaine on October 14, 2003. At sentencing, the district court
found Pullins responsible for cocaine equivalent to 11.95 kilograms
of marijuana, but only 3.647 kilograms of that amount is
attributable to Pullins’ actions on October 14. That 3.647
kilograms of marijuana equivalent results in a base offense level
of twelve, not the offense level of sixteen upon which Pullins’
sentence was calculated.2 Applying offense level twelve3 and
1
Pullins does not challenge his conviction.
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 Pullins’ sentencing.
3
As in United States v. Evans, 416 F.3d 298 (4th Cir. 2005),
for purposes of determining whether a Sixth Amendment violation
occurred, the sentence imposed on Pullins is compared against the
guideline range he should have received, based on a jury verdict or
admitted conduct, excluding the adjustment for acceptance of
responsibility.
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Pullins’ criminal history category of IV, Pullins’ sentencing range
would have been twenty-one to twenty-seven months. Pullins’
sentence of twenty-seven months fell within that range. As
Pullins’ sentence did not exceed the maximum authorized by the
facts of the offense to which he pled guilty, no Sixth Amendment
violation occurred that affected his substantial rights.
Accordingly, the district court did not commit plain error. See
Evans, 416 F.3d at 298.
To the extent Pullins argues that the district court’s
treatment of the sentencing guidelines as mandatory requires
resentencing, this claim also fails. Although Pullins is correct
that the district court erred in treating the guidelines as
mandatory, see Hughes, 401 F.3d at 547-48, we have held that in the
plain error context, the error of sentencing under the mandatory
guidelines regime does not warrant a presumption of prejudice, nor
is it a structural error. United States v. White, 405 F.3d 208,
224 (4th Cir. 2005). Nothing in the record suggests the error in
applying the guidelines as mandatory affected the court’s ultimate
determination of Pullins’ sentence. Accordingly, Pullins cannot
satisfy the prejudice requirement of the plain error standard.
Accordingly, we affirm Pullins’ sentence. We dispense
with oral argument because the facts and legal contentions are
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adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED
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