UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4751
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
WILLIAM H. JOHNSON,
Defendant - Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Huntington. Robert C. Chambers,
District Judge. (CR-03-33)
Submitted: June 13, 2005 Decided: September 29, 2005
Before WILKINS, Chief Judge, and WIDENER and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Mary Lou Newberger, Federal Public Defender, David R. Bungard,
Assistant Federal Public Defender, Jonathan D. Byrne, Charleston,
West Virginia, for Appellant. Kasey Warner, United States
Attorney, Stephanie L. Haines, Assistant United States Attorney,
Huntington, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
William H. Johnson appeals the 135-month sentence imposed
after his case was remanded to correct an error in the computation
of his criminal history score. United States v. Johnson, No. 03-
4662 (4th Cir. Apr. 7, 2004) (unpublished). On remand, Johnson
raised objections to the offense level calculation and to
imposition of a term of supervised release at resentencing, citing
Blakely v. Washington, 542 U.S. 296 (2004). However, the district
court, following United States v. Hammoud, 381 F.3d 316 (4th Cir.
2004), vacated, 125 S. Ct. 1051 (2005), made the same findings as
at the first sentencing with respect to the offense level, and
imposed the same three-year term of supervised release. Johnson
now alleges that the district court’s determination of his offense
level at the resentencing hearing violated the Sixth Amendment and
that the court lacked authority to impose a term of supervised
release. We affirm.
In United States v. Booker, 125 S. Ct. 738 (2005), the
Supreme Court held that Blakely 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. 125 S. Ct. at 746-48, 755-56. The
Court remedied the constitutional violation by severing and
excising the statutory provisions that mandate sentencing and
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appellate review under the guidelines, thus making the guidelines
advisory. Id. at 756-57.
At his first sentencing hearing, Johnson admitted that he
was responsible for 169.5 grams of crack, which authorized the base
offense level of 34 used by the district court. Johnson did not
contest the two-level enhancement for possession of a firearm
during the offense at his first sentencing or in his first appeal.
At the resentencing hearing, Johnson’s ability to contest
the calculation of his offense level was governed by the mandate
rule, which “forecloses litigation of issues decided by the
district court but foregone on appeal or otherwise waived, for
example because they were not raised in the district court.”
United States v. Bell, 5 F.3d 64, 66 (4th Cir. 1993) (internal
citation omitted). A trial court may, however, reopen an issue
otherwise foreclosed in certain circumstances, namely, a showing
that (1) “controlling legal authority has changed dramatically;”
(2) that significant new evidence has been discovered; or (3) “that
a blatant error in the prior decision will, if uncorrected, result
in a serious injustice.” Id. at 67 (internal quotation and
citation omitted). In light of Booker, it is clear that the law
had changed.
Johnson’s challenge to the base offense level of 34 is
without merit because he specifically admitted distributing the
169.5 grams of crack on which the base offense level was
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calculated. We need not decide whether Johnson effectively
admitted possessing a firearm during the offense by not contesting
the enhancement before he was resentenced and by not making an
affirmative showing on remand that he had not possessed a firearm,
because the sentence did not exceed the maximum the court could
have imposed based only on facts Johnson admitted. United
States v. Evans, 416 F.3d 298, 300-01 (4th Cir. 2005). Without the
two-level weapon enhancement, and before the adjustment for
acceptance of responsibility, Johnson’s offense level would have
been 34. See id. at n.4 (to determine Sixth Amendment error,
appellate court uses guideline range based on facts defendant
admitted before range is adjusted for acceptance of
responsibility). With offense level 34 and criminal history
category I, Johnson’s guideline range would have been 151-188
months. Because Johnson’s sentence of 135 months did not exceed
the maximum of this range, no Sixth Amendment error occurred.
We find no merit in Johnson’s second claim. Booker did
not invalidate the Sentencing Reform Act in its entirety; instead,
the Supreme Court excised two provisions, 18 U.S.C.A. § 3553(b)(1)
and § 3742(e) (West 2000 & Supp. 2005), as described above, and
left the rest of the Act intact. The Court did not invalidate 18
U.S.C.A. § 3583 (West 2000 & Supp. 2005), the provision which
authorizes imposition of a term of supervised release. Moreover,
a three-year term of supervised release is required under 21
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U.S.C.A. § 841(b)(1)(C) (West Supp. 2005). Therefore, the district
court did not err in imposing a term of supervised release.
Accordingly, we affirm the sentence imposed by the
district court. 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
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