UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 03-4493
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
WAYNE ALLEN FLETCHER,
Defendant - Appellant.
On Remand from the United States Supreme Court.
(S. Ct. No. 04-1331)
Submitted: August 29, 2005 Decided: September 28, 2005
Before WILLIAMS and SHEDD, Circuit Judges, and Henry E. HUDSON,
United States District Judge for the Eastern District of Virginia,
sitting by designation.
Vacated and remanded by unpublished per curiam opinion.
Keith Alan Williams, KEITH A. WILLIAMS, P.A., Greenville, North
Carolina, Richard William Westling, New Orleans, Louisiana, for
Appellant. Christine Witcover Dean, Anne Margaret Hayes, Assistant
United States Attorneys, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
On November 18, 2004, this court affirmed Wayne Allen
Fletcher’s convictions and sentence. See United States v.
Fletcher, No. 03-4493, 2004 WL 2617726 (4th Cir. Nov. 18, 2004)
(unpublished). On May 16, 2005, the Supreme Court of the United
States granted Fletcher’s petition for writ of certiorari, vacated
our judgment and remanded the case 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 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, 543 U.S. at
, 125 S. Ct. at 756.
In United States v. Hughes, 401 F.3d 540 (4th Cir. 2005),
we held that a sentence imposed under the pre-Booker mandatory
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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 Fletcher’s offense level and the resulting
guideline range was imposed in a mandatory manner, there was a
Sixth Amendment violation under Booker.1 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.
1
We take no position with respect to the Government’s argument
that some of the enhancements were based upon admitted conduct
because Fletcher did not object at sentencing to those
enhancements.
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Accordingly, we vacate the sentence and remand for
further consideration in light of Booker and Hughes.2 3
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.
VACATED AND REMANDED
2
The convictions were affirmed in our prior opinion and are
not before us now.
3
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 Fletcher’s sentencing.
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