UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4668
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
MICHAEL LEE LAMPKINS,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Abingdon. James P. Jones, Chief District
Judge. (CR-04-15)
Submitted: September 30, 2005 Decided: November 3, 2005
Before NIEMEYER, LUTTIG, and TRAXLER, Circuit Judges.
Affirmed in part, vacated in part, and remanded by unpublished per
curiam opinion.
Michael A. Bragg, BRAGG LAW, P.L.C., Abingdon, Virginia, for
Appellant. John L. Brownlee, United States Attorney, Jennifer R.
Bockhorst, Assistant United States Attorney, Abingdon, Virginia,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Michael Lee Lampkins appeals his conviction and sentence
imposed for manufacturing methamphetamine, in violation of 21
U.S.C. § 841(a)(1)(2000), and maintaining a place for the purposes
of manufacturing methamphetamine, in violation of 21 U.S.C.
§ 856(a)(1) (2000). Including several enhancements, the
Presentence Report (“PSR”) reflected an applicable guidelines range
was 78-97 months’ imprisonment. In written objections to the PSR,
Lampkins asserted that the judicial enhancements listed in the PSR
violated his Sixth Amendment rights under Blakely v. Washington,
542 U.S. 296 (2004).
At sentencing, Lampkins objected to the amount of drugs
attributed to him. The district court rejected these claims, and
adopted the drug quantities as listed in the PSR. The district
court sentenced Lampkins to seventy-eight months in prison, and in
light of United States v. Hammoud, 378 F.3d 426 (4th Cir.) (order),
opinion issued by 381 F.3d 316, 353-54 (4th Cir. 2004) (en banc),
cert. granted and judgment vacated, 125 S. Ct. 1051 (2005), imposed
an alternative sentence of forty-eight months. On appeal, Lampkins
objects to the district court’s calculation of drug quantity and
imposition of an enhancement for creating a substantial risk of
harm to human life under United States Sentencing Guideline
§ 2D1.1(b)(5)(B).
- 2 -
Because Lampkins objected in the district court to the
guidelines calculation under Blakely, he need not establish plain
error. Cf. United States v. White, 405 F.3d 208 (4th Cir. 2005);
United States v. Hughes, 401 F.3d 540 (4th Cir. 2005). Under Fed.
R. Crim. P. 52(a), however, “[a]ny error . . . that does not affect
substantial rights must be disregarded.” After careful review of
the record, we conclude that Lampkins suffered no Sixth Amendment
violation because Lampkins stipulated to the adjusted offense level
as part of his plea agreement. Thus the facts underlying the
attributable amount of drugs and the risk of harm enhancement were
admitted, and not based on impermissible judicial fact-finding.
Lampkins also raises the issue of the legality of the
mandatory application of the Guidelines. Assuming without deciding
that Lampkins’ claim is subject to plain error review, we conclude
that the district court plainly erred in its mandatory application
of the Sentencing Guidelines.1 Hughes, 401 F.3d at 553 (holding
that sentencing under a mandatory regime is “a separate class of
error . . . distinct from the Sixth Amendment claim that gave rise
to the decision in Booker” and that “[t]his error . . . may be
asserted even by defendants whose sentences do not violate the
Sixth Amendment.”). Moreover, because the district court expressly
stated that under an advisory sentencing scheme, it would have
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 Lampkins’ sentencing.
- 3 -
imposed a lower sentence of forty-eight months, we conclude that
Lampkins’ seventy-eight-month sentence affected his substantial
rights and we exercise our right to note the error on appeal.
Accordingly, we affirm Lampkins’ conviction, but remand for
resentencing consistent with Booker.2 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
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.
§ 3553(a), 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). Id. The
sentence must be “within the statutorily prescribed range and . .
. reasonable.” Id. at 547 (citation omitted).
- 4 -