UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4170
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ALEXANDER BARAJAS,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. Frank W. Bullock, Jr.,
District Judge. (CR-03-268)
Submitted: September 28, 2005 Decided: October 28, 2005
Before TRAXLER and GREGORY, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Vacated and remanded by unpublished per curiam opinion.
Christopher R. Clifton, GRACE, HOLTON, TISDALE & CLIFTON, P.A.,
Winston-Salem, North Carolina, for Appellant. Anna Mills Wagoner,
United States Attorney, Randall S. Galyon, 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Unpublished opinions are not binding precedent in this circuit.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:
Alexander Barajas appeals the 91-month sentence imposed
upon his guilty plea to conspiracy to possess with intent to
distribute in excess of 100 kilograms of marijuana, 21 U.S.C.
§§ 841, 846 (2000). At sentencing, Barajas received a two-level
enhancement for obstruction of justice, pursuant to United States
Sentencing Guidelines Manual § 3C1.1 (2002), based on the district
court’s finding that Barajas gave conflicting testimony about a co-
defendant’s role in the offense. Barajas’ base offense level was
determined to be 26. See USSG § 2D1.1(c)(7). After applying the
two-level enhancement referenced above, Barajas’ total offense
level was 28; with a criminal history category of I, the resulting
guidelines range was 78-97 months imprisonment. Without the
enhancement, the applicable range would have been 63-78 months
imprisonment.
Barajas claims that the enhancement he received for
obstruction of justice violated the decision announced by the
Supreme Court in Blakely v. Washington, 542 U.S. 296 (2004).
Because Barajas did not raise this issue at sentencing, his
argument is reviewed for plain error. United States v. Hughes, 401
F.3d 540, 547 (4th Cir. 2005) (citing United States v. Olano, 507
U.S. 725, 731-32 (1993)).
In United States v. Booker, 125 S. Ct. 738 (2005), the
Supreme Court held that the “Sixth Amendment is violated when a
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district court, acting pursuant to the Sentencing Reform Act and
the guidelines, imposes a sentence greater than the maximum
authorized by the facts found by the jury alone.” 125 S. Ct. at
746. The Court remedied this 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.
In Hughes, this court found that Hughes’ sentence exceeded the
maximum sentence authorized by the facts found by the jury alone,
in violation of Booker. Hughes, 401 F.3d at 547. Under plain
error review, this court found there was error, the error was
plain, and the error affected Hughes’ substantial rights. Id. at
549. Here, Barajas’ offense level was increased by two levels
based on the court’s determination that his conflicting statements
about his co-defendant’s level of responsibility constituted
obstruction of justice within the meaning of USSG § 3C1.1. Without
this increase, his total offense level would have been 26,
resulting in a sentencing range of 63 to 78 months. We find that
this constitutes plain error and warrants vacating and remanding
for resentencing. Hughes, 401 F.3d at 555-56.1 Therefore, we
1
Just as we noted in Hughes, 401 F.3d at 545 n.4, “[w]e of
course offer no criticism of the district judge, who followed the
law and procedure in effect at the time” of Barajas’ 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”).
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vacate Barajas’ sentence and remand for resentencing.2 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. Hughes, 401
F.3d at 546. The court should consider this sentencing range along
with the other factors described in 18 U.S.C.A. § 3553(a) (West
2000 & Supp. 2005), 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.A.
§ 3553(c)(2). Id. The sentence must be “within the statutorily
prescribed range and . . . reasonable.” Id. 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.
VACATED AND REMANDED
2
Because we find that resentencing is warranted due to the
erroneous two-level enhancement Barajas received for obstruction of
justice, we have not addressed his remaining claims challenging the
district court’s denial of a reduction for acceptance of
responsibility or its finding that he did not qualify for the
safety valve reduction. See Hughes, 401 F.3d at 556 n.15.
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