UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4351
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
TYRONE GREGORY DUNLAP,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Florence. Terry L. Wooten, District Judge.
(CR-03-846)
Submitted: October 28, 2005 Decided: November 17, 2005
Before WILKINSON and MICHAEL, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed in part, vacated in part, and remanded by unpublished per
curiam opinion.
William F. Nettles, IV, Assistant Federal Public Defender,
Florence, South Carolina, for Appellant. Rose Mary Parham,
Assistant United States Attorney, Florence, South Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Pursuant to his guilty plea, Tyrone Gregory Dunlap was
convicted of possession of a firearm by a person previously
convicted of a felony, in violation of 18 U.S.C. §§ 922(g)(1),
924(a)(2) (2000). The district court sentenced Dunlap under the
federal sentencing guidelines to 108 months incarceration.
Dunlap’s counsel filed a brief pursuant to Anders v. California,
386 U.S. 738 (1967), stating that there were no meritorious issues
for appeal, but challenging the validity of the plea and the
propriety of the sentence. Dunlap filed a pro se supplemental
brief arguing that his conviction and sentence are invalid because
his sentence was enhanced by facts found by the district court
judge. See United States v. Booker, 125 S. Ct. 738 (2005). For
the reasons that follow, we affirm Dunlap’s conviction, but vacate
his sentence and remand for resentencing.
We find that Dunlap’s guilty plea was knowingly and
voluntarily entered after a thorough hearing pursuant to Fed. R.
Crim. P. 11. Dunlap was properly advised of his rights, the
offense charged, and the maximum sentence for the offense. The
court also determined that there was an independent factual basis
for the plea and that the plea was not coerced or influenced by any
promises. See North Carolina v. Alford, 400 U.S. 25, 31 (1970);
United States v. DeFusco, 949 F.2d 114, 119-20 (4th Cir. 1991).
Dunlap contends that his plea was not knowingly entered because he
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was not advised that prior felony convictions for either a crime of
violence or a controlled substance offense were elements of the
offense to which he pled guilty. Dunlap notes that these factors
were not charged in the indictment, nor did he admit them.
Therefore, he asserts that his plea is invalid because it was not
knowingly entered. However, Dunlap’s prior convictions for drug or
violent crimes are not elements of the § 922(g)(1) offense. These
relate to sentencing and are discussed below.
Relying on Blakely v. Washington, 542 U.S. 296 (2004),
the predecessor to United States v. Booker, Dunlap contends that
the district court made factual findings about his prior
convictions, which resulted in his base offense level being
increased to level 24. In Almendarez-Torres v. United States, 523
U.S. 224, 233-35 (1998), the Supreme Court held that the government
need not allege in its indictment and need not prove beyond
reasonable doubt that a defendant had prior convictions for a
district court to use those convictions for purposes of enhancing
a sentence. See United States v. Cheek, 415 F.3d 349, 351-54 (4th
Cir. 2005) (holding that armed career criminal designation based on
defendant’s prior convictions did not violate Sixth Amendment),
petition for cert. filed, U.S.L.W. (U.S. Oct. 3, 2005) (No.
05-6904); United States v. Guevara, 408 F.3d 252, 261 (5th Cir.
2005) (“Career offender status is not ‘a sentencing judge’s
determination of a fact other than a prior conviction.’ . . .
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Booker explicitly excepts from Sixth Amendment analysis the third
component of the crime of violence determination, the fact of two
prior convictions.”). Thus, we find no error by the district court
in determining Dunlap’s base offense level by reference to his
prior convictions.
Dunlap next argues that his sentence is unconstitutional
because it was enhanced by four levels based on the district
court’s finding that he possessed the firearm in connection with
another felony offense. See U.S. Sentencing Guidelines Manual
§ 2K2.1(b)(5) (2003). In United States v. Booker, the Supreme
Court held that the mandatory guidelines scheme that provided for
sentence enhancements based on facts found by the court violated
the Sixth Amendment. Booker, 125 S. Ct. at 746-48, 755-56. 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. 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 admitted by the defendant, constitutes plain error that
affects the defendant’s substantial rights and warrants reversal
under Booker. Hughes, 401 F.3d at 546-56.
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In this case, Dunlap contends that he did not admit that
he possessed the drugs that the court found he possessed, nor did
he admit that the firearm was possessed in connection with another
felony offense. Therefore, he argues that the four-level
enhancement violated his Sixth Amendment rights. Because Dunlap
neither contested the calculation of his base offense level nor
raised a Blakely-type challenge at sentencing, review is for plain
error. United States v. Olano, 507 U.S. 725, 732 (1993); Hughes,
401 F.3d at 547. Under the plain error standard, Dunlap 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 affects
the fairness, integrity or public reputation of judicial
proceedings.” Hughes, 401 F.3d at 555 (internal quotation marks
omitted).
Because the court made factual findings that increased
Dunlap’s sentence, we find that there was plain error. Also, this
error resulted in Dunlap being exposed to a longer prison term, and
therefore affects his substantial rights. Id. at 548. Because the
district court “impose[d] a sentence greater than the maximum
authorized by the facts found by the jury alone,” we find that the
district court committed plain error that warrants correction. Id.
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at 546. Accordingly, we vacate Dunlap’s sentence and remand for
resentencing.1
The final issue presented in this appeal is a challenge
to the district court’s determination that Dunlap had not accepted
responsibility. This finding was made after Dunlap twice tested
positive for marijuana use while he was on bond pending sentencing.
We find no clear error in this ruling. See USSG § 3E1.1, comment.
(n.1(b)); United States v. Kise, 369 F.3d 766, 771 (4th Cir. 2004)
(providing standard); United States v. Ceccarani, 98 F.3d 126, 130-
31 (3d Cir. 1996) (upholding the denial of acceptance of
responsibility based on new unrelated criminal conduct).
In accordance with Anders, we have reviewed the entire
record in this case for any other meritorious issue and have found
none. Accordingly, although we affirm Dunlap’s conviction, we
vacate his sentence and remand for proceedings consistent with
Hughes, 401 F.3d at 546 (citing Booker, 125 S. Ct. at 764-65,
767).2 We dispense with oral argument because the facts and legal
1
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 Dunlap’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”).
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,
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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
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. at 547.
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