UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 03-4889
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
DARIAN TERRENCE HARRIS, a/k/a Darion Harris,
a/k/a Damien Russell, a/k/a Damion Russell,
a/k/a Darren Jackson, a/k/a Russell Damior,
a/k/a Michael Jones,
Defendant - Appellant.
On Remand from the United States Supreme Court.
(S. Ct. No. 04-9800)
Submitted: September 28, 2005 Decided: November 23, 2005
Before LUTTIG and SHEDD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Opinion reinstated; sentence affirmed by unpublished per curiam
opinion.
Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant. Frank D. Whitney, United States Attorney, Anne M.
Hayes, Christine Witcover Dean, Assistant United States Attorneys,
Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
This case is before the court on remand from the Supreme
Court. We previously affirmed Darian Harris’ conviction. United
States v. Harris, No. 03-4889, 2004 WL 2164941 (4th Cir. Sept. 21,
2004) (unpublished). The Supreme Court vacated our decision and
remanded Harris’ case to us for further consideration in light of
United States v. Booker, 125 S. Ct. 738 (2005).
Harris contends that the district court erred in
sentencing him under the mandatory guideline system based on its
finding by a preponderance of the evidence that he obstructed
justice. See U.S. Sentencing Guidelines Manual § 3C1.1 (2002).
Because this claim was not raised in the district court, we review
for plain error. United States v. Hughes, 401 F.3d 540, 547 (4th
Cir. 2005). After Booker, any fact (other than a prior
conviction), which is necessary to support a sentence exceeding the
maximum authorized by the facts established by the jury verdict
must be admitted by the defendant. 125 S. Ct. at 756. Although
Harris initially objected to the enhancement, at sentencing, he
withdrew his objection and admitted to the facts in the presentence
report. He further negotiated the specific sentence he in fact
received. Thus, there was no factual dispute and, correspondingly,
no Sixth Amendment error under Booker. With respect to whether the
district court’s mandatory application of the guidelines
constituted plain error, we find Harris has not established that
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the error in treating the guidelines as mandatory affected his
substantial rights. See United States v. White, 405 F.3d 208,
215-25 (4th Cir. 2005).
Accordingly, we reinstate our September 21, 2004 opinion
and affirm Harris’ sentence after our reconsideration in light of
Booker. 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.
OPINION REINSTATED;
SENTENCE AFFIRMED
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