UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-5068
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
HARSIMRAT SINGH,
Defendant - Appellant.
No. 04-5091
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
RANDHIR SINGH KHANGURA,
Defendant - Appellant.
Appeals from the United States District Court for the Middle
District of North Carolina, at Durham. James A. Beaty, Jr.,
District Judge. (CR-03-94)
Submitted: August 31, 2005 Decided: October 4, 2005
Before WILKINSON and LUTTIG, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
William L. Osteen, Jr., ADAMS & OSTEEN, Greensboro, North Carolina;
James D. Williams, Jr., LAW OFFICES OF JAMES D. WILLIAMS, JR.,
Durham, North Carolina, for Appellants. Anna Mills Wagoner, United
States Attorney, Sandra J. Hairston, Assistant United States
Attorney, Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
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PER CURIAM:
Appellants Harsimrat Singh and Randhir Singh Khangura
appeal their thirty-seven month sentences imposed after they pled
guilty to possession with the intent to distribute marijuana, in
violation of 18 U.S.C. § 841(a)(1), (b)(1)(B) (2000). Citing the
Supreme Court’s decision in Blakely v. Washington, 542 U.S. 296
(2004), Appellants argue that the district court erred when it
treated the guidelines as mandatory and not advisory. We affirm.
Assuming without deciding that the Appellants’ objection
in the district court, based on Blakely, was sufficient to properly
preserve this issue, the Government would bear the burden of
establishing that any error is harmless. See United States v.
Booker, 125 S. Ct. 738, 769 (2005) (noting that appellate courts
may apply the plain error and harmless error doctrines in
determining whether resentencing is required); Fed. R. Crim. P.
52(a) (stating that an appellate court may disregard any error that
does not affect substantial rights). The Government bears the
burden in harmless error review of showing beyond a reasonable
doubt that the error did not affect the defendant’s substantial
rights. United States v. Mackins, 315 F.3d 399, 405 (4th Cir.
2003); United States v. Stokes, 261 F.3d 496, 499 (4th Cir. 2001).
Affecting substantial rights means that the error affected the
outcome of the proceedings. Stokes, 261 F.3d at 499. An error in
sentencing may be disregarded if the reviewing court is certain
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that any such error “did not affect the district court’s selection
of the sentence imposed.” Williams v. United States, 503 U.S. 193,
203 (1992).
Because the Appellants qualified for the “safety valve”
reduction, pursuant to the U.S. Sentencing Guidelines Manual,
§ 5C1.2 (2003), the district court sentenced them to a sentence
well below the statutory mandatory five-year sentence which would
otherwise have been applicable in their case. See United States v.
Robinson, 404 F.3d 850, 862 (4th Cir. 2005) (“Booker did nothing to
alter the rule that judges cannot depart below a statutorily
provided minimum sentence.”). Thus, we conclude that any error
under Booker is harmless.
Accordingly, we affirm the Appellants’ sentences. 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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