UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 03-4629
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
MAGUESTE PLASIMOND, a/k/a Tyrone,
Defendant - Appellant.
On Remand from the United States Supreme Court.
S. Ct. No. 04-6218
Submitted: September 19, 2005 Decided: September 27, 2005
Before TRAXLER, SHEDD, and DUNCAN, Circuit Judges.
Affirmed in part; vacated and remanded in part by unpublished per
curiam opinion.
Thomas N. Cochran, Assistant Federal Public Defender, Greensboro,
North Carolina, for Appellant. Gretchen C. F. Shappert, United
States Attorney, D. Scott Broyles, Assistant United States
Attorney, Charlotte, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Magueste Plasimond appeals his conviction for conspiracy
to possess with intent to distribute cocaine in violation of 21
U.S.C. § 846 (2000), and for aiding and abetting possession with
intent to distribute cocaine in violation of 21 U.S.C. § 841(a)(1)
(2000). We affirm his conviction, but vacate his sentence and
remand for resentencing in light of United States v. Booker, 125 S.
Ct. 738 (2005), and United States v. Hughes, 401 F.3d 540 (4th Cir.
2005).
Plasimond contends that the district court improperly
sentenced him when it imposed a sentence greater than the maximum
authorized by the facts he admitted to in his guilty plea. Because
he failed to raise this claim below, we review it for plain error.
Hughes, 401 F.3d at 547.
Plasimond pled guilty to possession of an unspecified
amount of cocaine. At sentencing, the district court held
Plasimond accountable for three kilograms of cocaine base for a
base offense level of thirty-eight under U.S. Sentencing Guidelines
Manual § 2D1.1(c)(1) (2004). The district court subtracted three
offense levels for acceptance of responsibility under USSG
§ 3E1.1(a). With a total offense level of thirty-five and a
criminal history category of I, resulting in a guideline range of
168-210 months’ imprisonment, the district court sentenced
Plasimond to 168 months’ imprisonment.
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The district court’s drug quantity factual findings
provided the basis for a sentence that exceeded the sentence that
could have been imposed based only on the facts Plasimond admitted
to in his guilty plea. The district court erred in basing the
sentence on judge-found facts under a mandatory guidelines regime,
and the error was plain.* Hughes, 401 F.3d at 547-48. Because
Plasimond’s sentence was longer than what could have been imposed
based on the guilty plea alone, the error affected his substantial
rights, id. at 548, and we will notice the error, id. at 555.
Therefore, Plasimond must be resentenced.
Although the Sentencing Guidelines are no longer
mandatory, Booker makes clear that a sentencing court must still
“consult [the] Guidelines and take them into account when
sentencing.” 125 S. Ct. at 767. On remand, the district court
should first determine the appropriate sentencing range under the
Guidelines, making all the factual findings appropriate for that
determination. See Hughes, 401 F.3d at 546. The court should
consider this sentencing range along with the other factors
described in 18 U.S.C. § 3553(a) (2000), and then impose a
sentence. Id. If that sentence falls outside the Guidelines
range, the court should explain its reasons for the departure as
*
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 Plasimond’s sentencing.
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required by 18 U.S.C. § 3553(c)(2) (2000). Id. The sentence must
be “within the statutorily prescribed range and . . . reasonable.”
Id. at 546-47.
We affirm Plasimond’s conviction. In light of Booker and
Hughes, we vacate Plasimond’s sentence and remand for resentencing.
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
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