UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4772
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
DENNIS E. LYN,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Charleston. Patrick Michael Duffy, District
Judge. (CR-03-664)
Submitted: September 21, 2005 Decided: October 17, 2005
Before KING, SHEDD, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Lionel S. Lofton, V. Lynn Lofton, LOFTON & LOFTON, P.C.,
Charleston, South Carolina, for Appellant. Jonathan S. Gasser,
United States Attorney, Carlton R. Bourne, Jr., Assistant United
States Attorney, Charleston, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Dennis E. Lyn pled guilty pursuant to a plea agreement to
one count of participating in an unlicenced money transmitting
business and aiding and abetting such business, in violation of 18
U.S.C. §§ 2, 1960 (2000). On appeal, Lyn claims the district court
violated the Sixth Amendment by determining his sentence based upon
the amount of money involved and that the money was derived from
unlawful activity. Finding no reversible error, we affirm.
Because Lyn preserved his Sixth Amendment claim by
objecting to his sentence under Blakely v. Washington, 542 U.S. 296
(2004), our 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 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, we “must reverse
unless we find 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)).
1
Apprendi v. New Jersey, 530 U.S. 466 (2000).
- 2 -
There is no Sixth Amendment violation where, as here, the
sentence is based upon facts established by a guilty plea or
admitted by the defendant. Lyn admitted to the conduct that gave
rise to the adjustments. He stipulated in the plea agreement that
the amount of money involved was greater than $1,000,000. He also
agreed that the funds were derived from unlawful activity. In the
instant case, the district court did not have to engage in any fact
finding with respect to the amount of money or that the money was
derived from unlawful activity. Therefore, there was no Sixth
Amendment violation.
A district court also errs if it treats the guidelines as
mandatory in setting a sentence. See Booker, 543 U.S. at , 125
S. Ct. at 756. Although the district court considered the
guidelines mandatory, the court also announced an identical
alternate sentence, treating the guidelines as advisory and
considering 18 U.S.C. § 3553, as instructed in United States v.
Hammoud, 378 F.3d 426 (4th Cir. 2004), opinion issued by, United
States v. Hammoud, 381 F.3d 316 (4th Cir. 2004), cert. granted,
judgment vacated, 125 S. Ct. 1051 (2005). Because the sentence
would be same regardless of whether the court were to treat the
guidelines as advisory or mandatory, any error was harmless.2
2
In determining the offense level, the district court
committed no “double counting” error by adding two levels pursuant
to U.S. Sentencing Guidelines Manual § 2S1.3(b)(1)(A) (2003). See
United States v. Schaal, 340 F.3d 196, 198 (4th Cir. 2003); United
States v. Wilson, 198 F.3d 467, 472 n.* (4th Cir. 1999).
- 3 -
Accordingly, we affirm the conviction and sentence and
deny the motion for remand.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
3
The Government had not asserted that Lyn’s appeal was barred
by the appellate waiver contained in the plea agreement, so we do
not rely upon the waiver for disposition of this case.
- 4 -