UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4397
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JAMAL HICKS,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Big Stone Gap. Glen M. Williams, Senior
District Judge. (CR-03-10088)
Submitted: September 30, 2005 Decided: November 15, 2005
Before LUTTIG, MICHAEL, and DUNCAN, Circuit Judges.
Affirmed in part, vacated in part, and remanded by unpublished per
curiam opinion.
Louis Dene, DENE & DENE, P.C., Abingdon, Virginia, for Appellant.
John L. Brownlee, United States Attorney, R. Lucas Hobbs, Assistant
United States Attorney, Abingdon, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Jamal Hicks appeals his conviction and sentence on a
charge of assaulting a federal correctional officer, in violation
of 18 U.S.C. §§ 111(a)(1), 111(b) (2000). The district court
adopted the findings set forth in the presentence investigation
report, and, after applying a two-level enhancement to Hicks’ base
offense level pursuant to U.S. Sentencing Guidelines Manual
(“USSG”) § 2A2.2(b)(3)(A) (2003), he sentenced Hicks as a career
offender pursuant to USSG § 4B1.1. Specifically, the district
court sentenced Hicks at the low end of the calculated guidelines
range to 210 months’ imprisonment, three years of supervised
release, and ordered him to pay restitution in the amount of
$1167.52, and a $100 assessment. In so sentencing Hicks, the
district court made a statement that it considered the sentencing
range to be high, but that it was bound to sentence Hicks within
the federal guidelines.
Hicks’ attorney has filed a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), asserting plain error1 by the
district court pursuant to Blakely v. Washington, 542 U.S. 296
(2004), in sentencing him as a career offender, but concluding that
the enhancement was properly applied by the district court and that
there are no meritorious grounds for appeal. In his pro se
supplemental brief, Hicks asserts claims of ineffective assistance
of counsel, denial of due process, violation of his Sixth Amendment
1
Because Hicks did not preserve this claim of error in the
district court, we review for plain error. United States v.
Hughes, 401 F.3d 540, 547 (4th Cir. 2005).
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rights, and sentencing error relative to his sentence as a career
offender. In addition to consideration of the issues raised by
Hicks and his counsel, in accordance with the requirements of
Anders, we have examined the entire record and find no meritorious
issues for appeal not discussed herein.
We conclude that Hicks is entitled to be resentenced
under United States v. Booker, 125 S. Ct. 738 (2005).2 Booker held
that the “Sixth Amendment is violated when a 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.” United States v. Hughes, 401 F.3d 540, 547
(4th Cir. 2005). The Supreme 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. Booker, 125 S. Ct. at 756-57
(opinion of Justice Breyer for the Court). In Hughes, this court
found Hughes’ sentence exceeded the maximum sentence authorized by
the facts found by the jury alone, in violation of Booker. Id. at
547. Hughes raised the issue for the first time on appeal and
review was for plain error. Id. Under plain error review, this
court found there was error, the error was plain, and the error
affected Hughes’ substantial rights. Id. at 546-56 (citing United
States v. Olano, 507 U.S. 725, 731-32 (1993)). The court
recognized the error because “failure to notice such an error would
2
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 Hicks’ sentencing.
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seriously affect the fairness, integrity, or public reputation of
judicial proceedings.” Id. at 555.
Here, the district court’s enhancement by a preponderance
of the evidence of Hicks’ sentence for an offense that involved
bodily injury pursuant to USSG § 2A2.2(b)(3)(A) clearly was a
violation pursuant to Booker, because absent that enhancement,
Hicks’ offense level would have been two offense levels below that
on which he ultimately was sentenced, with an attendant lower
guidelines range. Hence, that enhancement was plain error, which
this court recognizes under Booker.
Turning to the career offender enhancement, in Booker,
the Supreme Court reaffirmed its prior holding in Apprendi that
“[a]ny fact (other than a prior conviction) which is necessary to
support a sentence exceeding the maximum authorized by the facts
established by a plea of guilty or a jury verdict must be admitted
by the defendant or proved to a jury beyond a reasonable doubt.”
Booker, 125 S. Ct. at 756. This court has held that the
application of the career offender enhancement falls within the
exception for prior convictions where the facts are undisputed,
making it unnecessary for the district court to engage in further
fact finding about a prior conviction. United States v. Collins,
412 F.3d 515, 521-23 (4th Cir. 2005); see Shepard v. United States,
125 S. Ct. 1254 (2005) (holding that a court’s inquiry as to
disputed facts in connection with a prior conviction is limited to
the terms of the charging document, a plea agreement, a transcript
of the plea colloquy, or a comparable judicial record). In
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Collins, we concluded there was no Sixth Amendment violation. 412
F.3d at 523.
Hicks’ assertion that his Sixth Amendment rights were
violated when the district court made impermissible factual
findings to classify him as a career offender survives Collins
because Hicks disputes that he satisfied the requirements for
career offender status. Specifically, Hicks points to the fact
that one of the predicate offenses relied upon by the district
court in sentencing him as a career offender was a juvenile
conviction for robbery with a deadly weapon, committed when he was
seventeen years of age. Here, the district court used the
guidelines range from the PSR in rendering Hicks’ sentence, which
was predicated on Hicks’ qualification as a career offender. In
classifying Hicks as a career offender, the PSR in fact relied on
an offense that occurred when Hicks was seventeen years of age,
with an attendant conviction that occurred more than five years
prior to the date of the instant conviction, for which Hicks
received a probation sentence, with no imprisonment term. USSG
§ 4B1.1, comment. (n.1); USSG § 4A1.2(d) comment. (n.7). Moreover,
this claim may transcend Booker because it appears, on its face,
that the district court sentenced Hicks as a career offender based
on a juvenile conviction which may have been improper, in addition
to being based on the district court’s fact-finding by a
preponderance of the evidence, the latter of which offends Hicks’
Sixth Amendment rights.
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We further find that Hicks’ sentence also is clearly
erroneous because the district court imposed it pursuant to a
mandatory guidelines scheme. In United States v. White, 405 F.3d
208, 216-17 (4th Cir. 2005), this court considered whether treating
the guidelines as mandatory was plain error in light of Booker, and
held that it was. However, we declined to presume prejudice,
finding that a defendant must “demonstrate, based on the record,
that the treatment of the guidelines as mandatory caused the
district court to impose a longer sentence than it otherwise would
have imposed.” White, 405 F.3d at 224. Because “the record as a
whole provide[d] no nonspeculative basis for concluding that the
treatment of the guidelines as mandatory ‘affect[ed] the district
court’s selection of the sentence imposed,’” id. at 223, we
concluded that the error did not affect the defendant’s substantial
rights and affirmed the sentence. Id. at 225.
Here, in sentencing Hicks, the district court announced
that it considered the guidelines range to be high, thus providing
conclusive evidence to support the conclusion that had it not been
constrained by the then-mandatory guidelines, it would have imposed
a lower sentence. The district court’s statement provides a non-
speculative demonstration that the error seriously affected the
outcome of Hicks’ proceedings. See White at 223. Thus, the plain
error standard has been met. For the foregoing reasons, we vacate
Hicks’ sentence and remand for further proceedings.
Hicks further asserts on appeal that both his trial and
his appellate attorneys were ineffective, and that he was thereby
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denied due process. Claims of ineffective assistance of counsel
should be raised by motion under 28 U.S.C. § 2255 (2000), in the
district court, unless it conclusively appears from the record that
counsel failed to provide effective representation. United States
v. DeFusco, 949 F.2d 114, 120-21 (4th Cir. 1991). We find that it
does not conclusively appear from the face of the record that
Hicks’ attorneys failed to provide effective representation
sufficient for the claim to be cognizable on direct appeal.
Accordingly, we affirm Hicks’ conviction, vacate his
sentence, and remand for resentencing. We deny Hicks’ motion to
relieve counsel, and 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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