UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4540
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
KEAT SHAUN WINGATE,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Columbia. Matthew J. Perry, Jr., Senior
District Judge. (CR-03-15)
Submitted: October 14, 2005 Decided: November 7, 2005
Before WILKINSON, KING, and SHEDD, Circuit Judges.
Affirmed in part, vacated in part, and remanded by unpublished per
curiam opinion.
Langdon D. Long, Assistant Federal Public Defender, Columbia, South
Carolina, for Appellant. Jonathan S. Gasser, Acting United States
Attorney, Stanley D. Ragsdale, Assistant United States Attorney,
Columbia, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Keat Shaun Wingate appeals his sentence of 262 months of
imprisonment imposed after he pleaded guilty to one count of
conspiracy 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 Wingate’s
plea, and whether it erred in sentencing Wingate as a career
offender pursuant to U.S. Sentencing Guidelines Manual (“USSG”)
§ 4B1.1 (2002). Wingate was notified of his right to file a pro se
supplemental brief, and did so, raising a claim pursuant to Blakely
v. Washington, 542 U.S. 296 (2004). Because we conclude that
Wingate’s sentence was enhanced based upon facts not charged in the
indictment or admitted by Wingate, 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 Wingate’s 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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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 Wingate did not object to the sentencing range of
262 to 327 months of imprisonment determined by the district court,
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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, Wingate 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
Wingate’s 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 Wingate’s plea hearing,
with which he explicitly agreed. However, Wingate also received a
five-level enhancement of his offense level for career offender,
pursuant to USSG § 4B1.1. 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 Wingate, and because,
absent this enhancement, Wingate’s guidelines range would have been
135 to 168 months, below the range in which Wingate was sentenced.
In his Anders brief, counsel also asserts error in the
district court’s acceptance of Wingate’s plea. We find that
Wingate’s plea colloquy was proper and conducted in accordance with
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the law. See United States v. DeFusco, 949 F.2d 114, 117, 120 (4th
Cir. 1991).
As required by Anders, we have examined the entire record
and find no other meritorious issues for appeal. Accordingly, we
affirm Wingate’s conviction, vacate his sentence, and remand for
resentencing in accordance with Booker and Hughes.3 We grant leave
to Wingate to file his pro se supplemental brief and deny his
motion to relieve his attorney. 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.
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