UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 03-4926
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
DAVID LYNCH,
Defendant - Appellant.
On Remand from the United States Supreme Court.
(S. Ct. No. 04-7445)
Submitted: September 7, 2005 Decided: September 29, 2005
Before WIDENER, LUTTIG, and KING, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
James R. Fox, ROMANO LAW OFFICE, Clarksburg, West Virginia, for
Appellant. Thomas E. Johnston, United States Attorney, Stephen D.
Warner, Assistant United States Attorney, Elkins, West Virginia,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
On June 22, 2004, this court affirmed David Lynch’s
sentence. See United States v. Lynch, No. 03-4926, 2004 WL 1385862
(4th Cir. June 22, 2004) (unpublished). On January 25, 2005, the
Supreme Court of the United States granted Lynch’s petition for
writ of certiorari, vacated this court’s judgment and remanded back
to this court for further consideration in light of United
States v. Booker, 543 U.S. , 125 S. Ct. 738 (2005). We vacate
the sentence and remand for resentencing.
In Booker, the Supreme Court held that Blakely v.
Washington, 542 U.S. 296 (2004), applied to the federal sentencing
guidelines and 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. Thus, when a defendant pleads guilty and is
sentenced under the mandatory guidelines scheme, “[a]ny fact (other
than a prior conviction) which is necessary to support a sentence
exceeding the maximum authorized by the facts established by a plea
of guilty or a jury verdict must be admitted by the defendant or
proved to a jury beyond a reasonable doubt.” Booker, 125 S. Ct. at
756. Because Lynch did not raise this claim below, we review for
plain error. See United States v. Hughes, 401 F.3d 540, 547 (4th
Cir. 2005).
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In Hughes, we held that a sentence imposed under the pre-
Booker mandatory sentencing scheme that was 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 error
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.
Because the district court engaged in judicial fact-
finding to determine Lynch’s offense level and the resulting
guideline range was imposed in a mandatory manner, there was a
Sixth Amendment violation under Booker. On remand, the court must
calculate the appropriate guideline range, consider the range in
conjunction with other relevant factors under the guidelines and 18
U.S.C.A. § 3553(a) (West 2000 & Supp. 2005), and impose a sentence.
If a court imposes a sentence outside the guideline range, the
district court must state its reasons for doing so. Hughes, 401
F.3d at 546.
Accordingly, we vacate the sentence and remand for
further consideration in light of Booker and Hughes.* We dispense
with oral argument because the facts and legal contentions are
*
Just as we noted in United States v. Hughes, 401 F.3d 540,
545 n.4 (4th Cir. 2005), “[w]e of course offer no criticism of the
district judge, who followed the law and procedure in effect at the
time” of Lynch’s sentencing.
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adequately presented in the materials before the court and argument
would not aid the decisional process.
VACATED AND REMANDED
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