UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-5024
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
MARK WILLIAM KING,
Defendant - Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Huntington. Robert C. Chambers,
District Judge. (CR-04-83)
Submitted: September 16, 2005 Decided: October 18, 2005
Before WILLIAMS, MICHAEL, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
W. Michael Frazier, FRAZIER & OXLEY, L.C., Huntington, 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Unpublished opinions are not binding precedent in this circuit.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:
Mark William King appeals his conviction and 108-month
sentence imposed following a guilty plea to conspiracy to
distribute cocaine base, in violation of 21 U.S.C. § 846 (2000).
The district court found that King was responsible for not less
than five and not more than twenty grams of cocaine base, assigning
him a base offense level of twenty-six. The court then found that
King possessed a weapon, and added two levels. The court added two
additional levels for playing a leadership role. Finally, the
court applied a three-level adjustment for acceptance of
responsibility, giving King an adjusted offense level of twenty-
seven. Coupled with a Criminal History Category IV, King’s
applicable guidelines range was 100-125 months. Taking into
account King’s considerable drug addiction, the court sentenced him
to 108 months’ imprisonment. King now appeals.
On appeal, King contends that in light of the Supreme
Court’s decision in United States v. Booker, 125 S. Ct. 738 (2005),
the district court erroneously enhanced his sentence based upon
facts not found by the jury, in violation of his Sixth Amendment
rights. Because King preserved this issue by objecting to the PSR
based upon Blakely v. Washington, 542 U.S. 296 (2004), this court’s
review is de novo. See United States v. Mackins, 315 F.3d 399, 405
(4th Cir. 2003) (“If a defendant has made a timely and sufficient
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Apprendi[1] sentencing objection in the trial court, and so
preserved his objection, we review de novo.”). When a defendant
preserves a Sixth Amendment error, this court “must reverse unless
[it] find[s] this constitutional error harmless beyond a reasonable
doubt, with the Government bearing the burden of proving
harmlessness.” Id. (citations omitted); see United States v.
White, 405 F.3d 208, 223 (4th Cir. 2005) (discussing difference in
burden of proving that error affected substantial rights under
harmless error standard in Fed. R. App. P. 52(a), and plain error
standard in Fed. R. App. P. 52(b)).
In Booker, the Supreme Court held that 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.
Id. at 746, 750 (Stevens, J., opinion of the Court). The Court
remedied the constitutional violation by severing two statutory
provisions, 18 U.S.C.A. § 3553(b)(1) (West Supp. 2005) (requiring
sentencing courts to impose a sentence within the applicable
guideline range), and 18 U.S.C.A. § 3742(e) (West 2000 & Supp.
2005) (setting forth appellate standards of review for guideline
issues), thereby making the guidelines advisory. Booker, 125 S.
Ct. at 756-67 (Breyer, J., opinion of the Court).
1
Apprendi v. New Jersey, 530 U.S. 466 (2000).
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After Booker, courts 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.
This remedial scheme applies to any sentence imposed under the
mandatory guidelines, regardless of whether the sentence violates
the Sixth Amendment. Id. at 547 (citing Booker, 125 S. Ct. at 769
(Breyer, J., opinion of the Court)).
After careful review of the record, we conclude that King
suffered no Sixth Amendment violation. First, we conclude that
King admitted the facts underlying the amount of cocaine base
attributable to him, and his two-level leadership role enhancement
as part of his guilty plea. Accordingly, because these facts were
admitted, the district court’s finding of a base offense level of
twenty-six and application of the two-level enhancement for a
leadership role does not constitute error.
Second, even assuming that the application of a two-level
enhancement for use of a firearm was based upon facts found by the
judge and not admitted to by King, the application of this
enhancement did not violate King’s Sixth Amendment rights. Without
the firearm enhancement, King’s offense level would be reduced to
twenty-eight before considering the three-level reduction he
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received for acceptance of responsibility, making his applicable
sentencing range 110-137 months. See United States v. Evans, 416
F.3d 298, 300 n.4 (4th Cir. 2005) (noting that, in determining
whether Sixth Amendment error occurred, the sentence imposed must
be compared to the permissible guideline range before adjusting for
acceptance of responsibility). Because the district court imposed
a 108-month sentence, we find no Sixth Amendment violation.2
Accordingly, we affirm King’s conviction and sentence. We deny
both the Government’s motion to withdraw its brief and the parties’
joint motion to remand this appeal 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
2
As we find no constitutional violation in this case, we
reject King’s assertion that his sentencing under an
unconstitutional statute violated the rule of lenity. See
generally United States v. Lanier, 520 U.S. 259 (1997) (discussing
doctrine).
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