UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4134
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
CHANTE EZEQUIEL TAYLOR,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. N. Carlton Tilley, Jr.,
Chief District Judge. (CR-03-314)
Submitted: July 29, 2005 Decided: October 11, 2005
Before MOTZ, TRAXLER, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Anne R. Littlejohn, LAW OFFICE OF ANNE R. LITTLEJOHN, Greensboro,
North Carolina, for Appellant. Anna Mills Wagoner, United States
Attorney, Robert A. J. Lang, Assistant United States Attorney,
Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Chante Ezequiel Taylor pled guilty to possession of a
firearm by a convicted felon, in violation of 18 U.S.C.
§§ 922(g)(1), 924(a)(2) (2000). The district court imposed a
guidelines sentence of 110 months’ imprisonment. Taylor attacks
only his sentence on appeal and asserts his guidelines sentence was
imposed in violation of the Sixth Amendment under United States v.
Booker, 125 S. Ct. 738 (2005) (the mandatory manner in which the
federal sentencing guidelines required courts to impose sentencing
enhancements based on facts found by the court by a preponderance
of the evidence violated the Sixth Amendment). Specifically,
Taylor claims that his Sixth Amendment rights were violated when
the district court enhanced his offense level four levels, pursuant
to U.S. Sentencing Guidelines Manual § 2K2.1(b)(5) (2003), because
Taylor possessed a firearm in connection with another felony
offense, namely possession with intent to sell or deliver cocaine.
Because Taylor did not raise this issue below, our review
is for plain error. To establish plain error, Taylor must show
that an error occurred, that the error was plain, and that the
error affected his substantial rights. United States v. Olano, 507
U.S. 725, 732 (1993). Even if Taylor makes this showing, we will
correct the error only if it “seriously affect[s] the fairness,
integrity or public reputation of judicial proceedings.” Id.
(internal citations omitted).
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To establish that a Sixth Amendment error occurred in his
sentencing, Taylor must show that the district court imposed a
sentence exceeding the maximum allowed based only on the facts he
admitted. See Booker, 125 S. Ct. at 756 (“Any 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.”). Assuming that
Taylor did not admit that he possessed a firearm in connection with
another felony offense, and the challenged four point enhancement
is disregarded, Taylor’s maximum total offense level would have
been twenty-four rather than twenty-eight.* Based on offense level
twenty-four and Taylor’s criminal history category of VI, Taylor’s
sentencing range would have been 100 to 125 months without the
challenged four point enhancement. Taylor’s sentence of 110 months
fell squarely within that range. Because Taylor’s sentence did not
exceed the maximum authorized by the facts of the offense to which
he pled guilty, no Sixth Amendment violation occurred.
*
As in United States v. Evans, 416 F.3d 298 (4th Cir. 2005),
for purposes of determining whether a Sixth Amendment violation
occurred, the sentence imposed on Taylor is compared against the
guideline range that was properly determined (thus not considering
the challenged four point enhancement) before that range was
adjusted to account for the three-point reduction in offense level
Taylor received for acceptance of responsibility.
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To the extent Taylor argues that the district court’s
treatment of the sentencing guidelines as mandatory requires
resentencing, this claim also fails. Because Taylor did not object
to the application of the sentencing guidelines as mandatory,
appellate review is for plain error. United States v. White, 405
F.3d 208, 215 (4th Cir. 2005). In White, we held with regard to a
defendant whose appeal was pending when Booker was decided that it
was error, that was plain, for the district court to treat the
guidelines as mandatory. Id. at 217. However, to satisfy the
third prong of plain error analysis a defendant must show that he
was actually prejudiced. Id. at 223 (error did not affect
substantial rights when court indicated it was content with the
guidelines range and sentence).
Taylor has not demonstrated that the error of sentencing
him under the mandatory guidelines regime affected the outcome of
the district court proceedings. The district court judge made no
statements at sentencing indicating that he wished to sentence
Taylor below the guideline range but that the guidelines prevented
him from doing so. In addition, the district court judge
specifically noted at sentencing that “quite frankly, if the
sentencing range were lower, I probably would not consider
[sentencing Taylor at the low end of the guideline range] . . .
because of Mr. Taylor’s record.” The district court further
expressed that Taylor’s “record is not good” and that he should
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have received “more severe punishment for other crimes.” Given
these comments at sentencing, and the utter absence of any
indication that the district court would have given a lower
sentence had it been aware that application of the sentencing
guidelines was discretionary, Taylor fails to demonstrate that
application of the guidelines as mandatory affected his substantial
rights. Therefore, we affirm Taylor’s sentence.
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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