UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4240
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ROBERT LEE CYRUS,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Florence. C. Weston Houck, Senior District
Judge. (CR-03-55)
Submitted: September 28, 2005 Decided: October 18, 2005
Before WIDENER and SHEDD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed in part, vacated in part, and remanded by unpublished per
curiam opinion.
D. Craig Brown, THE LAW OFFICE OF D. CRAIG BROWN, P.C., Florence,
South Carolina, for Appellant. Alfred William Walker Bethea, Jr.,
Assistant United States Attorney, Florence, South Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Robert Lee Cyrus appeals his sentence of 235 months of
imprisonment imposed after he pleaded guilty to one count of
conspiracy to possess with intent to distribute 50 grams or more of
cocaine base, in violation of 21 U.S.C. § 846 (2000). Counsel has
filed an Anders1 brief asserting that there are no meritorious
issues for appeal, but questioning whether the district court
complied with the requirements of Fed. R. Crim. P. 11 when it
accepted Cyrus’ plea, and whether it erred in enhancing Cyrus’
sentence under U.S. Sentencing Guidelines Manual (“USSG”) § 3A1.2
(b)(1) (2002), based on Blakely v. Washington, 542 U.S. 296 (2004).
Cyrus was notified of his right to file a pro se supplemental
brief, but has not done so. The Government declined to file a
brief. Because we conclude that Cyrus’ sentence was enhanced based
upon facts not charged in the indictment or admitted by Cyrus, we
vacate his sentence and remand.2
In United States v. Booker, 125 S. Ct. 738 (2005), the
Supreme Court applied the rationale of Blakely to the federal
sentencing guidelines and held that the mandatory guidelines scheme
1
See Anders v. California, 386 U.S. 738 (1967).
2
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 Cyrus’ sentencing. See generally Johnson v. United
States, 520 U.S. 461, 468 (1997) (stating that an error is ‘plain’
if “the law at the time of trial was settled and clearly contrary
to the law at the time of appeal”).
- 2 -
that provided for sentence enhancements based on facts found by the
court by a preponderance of the evidence violated the Sixth
Amendment. Booker, 125 S. Ct. at 746-48, 755-56 (Stevens, J.,
opinion of the Court). The Court remedied the constitutional
violation by severing and excising the statutory provisions that
mandate sentencing and appellate review under the guidelines, thus
making the guidelines advisory. Id. at 756-57 (Breyer, J., opinion
of the Court). Subsequently, in United States v. Hughes, 401 F.3d
540, 546 (4th Cir. 2005), this court held that a sentence that was
imposed under the pre-Booker mandatory sentencing scheme and was
enhanced based on facts found by the court, not by a jury (or, in
a guilty plea case, not admitted to by the defendant), constitutes
plain error that 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 guidelines scheme. Hughes, 401 F.3d at 546-56.
The court directed sentencing courts to calculate the appropriate
guidelines range, consider that range in conjunction with other
relevant factors under the guidelines and 18 U.S.C.A. § 3553(a)
(West 2000 & Supp. 2004), and impose a sentence. If the district
court imposes a sentence outside the guidelines range, the court
should state its reasons for doing so. Id. at 546.
Because Cyrus did not object to the sentencing range of
235 to 293 months of imprisonment determined by the district court,
- 3 -
we review the district court’s guidelines calculation for plain
error. United States v. Olano, 507 U.S. 725, 732 (1993); Hughes,
401 F.3d at 547. Under the plain error standard, Cyrus must show:
(1) there was error; (2) the error was plain; and (3) the error
affected his substantial rights. Olano, 507 U.S. at 732-34. Even
when these conditions are satisfied, this court may exercise its
discretion to notice the error only if the error “seriously
affect[s] the fairness, integrity or public reputation of judicial
proceedings.” Id. at 736. (internal quotation marks omitted).
Our review of the record leads us to conclude that Cyrus’
base offense level was properly determined and is supported by the
drug quantity alleged in the indictment and included in the factual
basis stated at Cyrus’ plea hearing, with which he explicitly
agreed. However, Cyrus also received a three-level enhancement of
his offense level for official victim, pursuant to USSG
§ 3A1.2(b)(1). We conclude that the imposition of this enhancement
was error under the Sixth Amendment as applied in Booker, because
the facts supporting this enhancement were not alleged in the
indictment or admitted by Cyrus, and because, absent this
enhancement, Cyrus’ guidelines range would have been 168 to 210
months, below the range in which Cyrus was sentenced.
In his Anders brief, counsel also asserts error in the
district court’s acceptance of Cyrus’ plea because Cyrus failed to
verbally respond to every question posed by the court during his
- 4 -
Rule 11 plea colloquy. We find that Cyrus’ plea colloquy was
proper and conducted in accordance with the law, see United States
v. DeFusco, 949 F.2d 114, 117, 120 (4th Cir. 1991), and further
find that there is no showing that Cyrus’ failure to verbally
respond to each of the district court’s questions adversely
affected his substantial rights.
As required by Anders, we have examined the entire record
and find no other meritorious issues for appeal. Accordingly, we
affirm Cyrus’ conviction, vacate his sentence, and remand for
resentencing in accordance with Booker and Hughes.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.
AFFIRMED IN PART,
VACATED IN PART,
AND REMANDED
3
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
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 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.
- 5 -