UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-5063
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
CARL L. LINYARD, a/k/a Big Kahuna, a/k/a
Kahuna, a/k/a Gus,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Beaufort. Sol Blatt, Jr., Senior District
Judge. (CR-03-620)
Submitted: September 30, 2005 Decided: November 7, 2005
Before LUTTIG, TRAXLER, and DUNCAN, Circuit Judges.
Affirmed in part, vacated in part, and remanded by unpublished per
curiam opinion.
Francis J. Cornely, Charleston, South Carolina, for Appellant.
Robert H. Bickerton, 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Unpublished opinions are not binding precedent in this circuit.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:
Carl L. Linyard was found guilty by a jury of conspiring
to distribute and possessing with intent to distribute fifty grams
or more of cocaine base “crack” (Count 1), distributing fifty grams
or more of crack (Count 3), and possessing with intent to
distribute a quantity of crack (Counts 6-10, 13, 14). The district
court sentenced Linyard to life imprisonment on Counts 1 and 3 and
360 months of imprisonment for Counts 6-10, 13 and 14. All
sentences were imposed to run concurrently to each other. Linyard
timely appeals alleging the district court erred by denying his
motion to suppress evidence found at his residence and the
residence of Latoya Daise and that he was improperly sentenced.
For the reasons that follow, we affirm Linyard’s convictions but
vacate and remand for resentencing.
We find no error in the district court’s decision to deny
Linyard’s motion to suppress the evidence found at his and Daise’s
residences. See United States v. Rusher, 966 F.2d 868, 873 (4th
Cir. 1992) (stating standards of review). Looking at the totality
of the circumstances, see United States v. Clyburn, 24 F.3d 613,
617 (4th Cir. 1994), we find the search warrants, obtained and
executed by state officials, were based on probable cause, see
Illinois v. Gates, 462 U.S. 213, 238 (1983), and provided a
substantial basis for concluding that probable cause existed for
issuing the warrants. See United States v. Blackwood, 913 F.2d
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139, 142 (4th Cir. 1990). Accordingly, as this is Linyard’s only
issue regarding his convictions, we affirm.
Next, Linyard alleges that the district court improperly
enhanced his sentence under the Federal Sentencing Guidelines based
on facts not found by the jury or admitted by him. Linyard timely
objected to the sentencing enhancements contained in the
presentence report in the district court, relying on the Supreme
Court’s decision in Blakely v. Washington, 542 U.S. 296 (2004), as
authority for his position. Since Linyard’s sentencing, the
Supreme Court has expanded its decision in Blakely. See United
States v. Booker, 125 S. Ct. 738 (2005). In Booker the Supreme
Court held that the mandatory manner in which the Federal
Sentencing Guidelines required courts to impose sentencing
enhancements based on facts found by the court by a preponderance
of the evidence violated the Sixth Amendment. Id. at 746, 750
(Stevens, J., opinion of the Court). The Court remedied the
constitutional violation by severing two statutory provisions, 18
U.S.C.A. § 3553(b)(1) (West Supp. 2005) (requiring sentencing
courts to impose a sentence within the applicable guideline range),
and 18 U.S.C.A. § 3742(e) (West 2000 & Supp. 2005) (setting forth
appellate standards of review for guideline issues), thereby making
the Guidelines advisory. Booker, 125 S. Ct. at 756-67 (Breyer, J.,
opinion of the Court). This remedial scheme applies to any
sentence imposed under the mandatory Guidelines, regardless of
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whether the sentence violates the Sixth Amendment. United
States v. Hughes, 401 F.3d 540, 547 (4th Cir. 2005) (citing Booker,
125 S. Ct. at 769 (Breyer, J., opinion of the Court)).
Because Linyard preserved these sentencing issues by
objecting to his presentence report below on the basis of Blakely,
we review 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[*] sentencing objection in the trial court, and so
preserved his objection, we review de novo.”) (citation omitted).
When a defendant preserves a Sixth Amendment error, this court
“must reverse unless [it] find[s] 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)).
Linyard alleges on appeal that if the district court had
sustained his Blakely objections to the presentence report his
sentencing range would have been 210 to 262 months of imprisonment,
far below his sentence of life. In light of Booker, we vacate
Linyard’s sentences and remand the case for resentencing.
*
Apprendi v. New Jersey, 530 U.S. 466 (2000).
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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. See Hughes, 401 F.3d at 546 (applying Booker on plain
error review). 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. & n.5.
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) (West Supp. 2005). Id. The sentence must be
“within the statutorily prescribed range and . . . reasonable.” Id.
at 547.
Accordingly, we affirm Linyard’s convictions but vacate
and remand for resentencing in accordance with this opinion. 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
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