UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 03-4802
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
DESMOND OLLIVIERRE, a/k/a James Franklin
Bridges,
Defendant - Appellant.
On Remand from the United States Supreme Court.
(S. Ct. No. 04-7096)
Submitted: October 17, 2005 Decided: November 22, 2005
Before WILLIAMS and KING, Circuit Judges, and Louise W. FLANAGAN,
Chief United States District Judge for the Eastern District of
North Carolina, sitting by designation.
Vacated and remanded by unpublished per curiam opinion.
John H. Hare, Assistant Federal Public Defender, OFFICE OF THE
FEDERAL PUBLIC DEFENDER, Columbia, South Carolina, for Appellant.
Jonathan S. Gasser, Acting United States Attorney, Marshall Prince,
Assistant United States Attorney, Jimmie C. Ewing, OFFICE OF THE
UNITED STATES ATTORNEY, Columbia, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
On August 13, 2004, this court affirmed Desmond
Ollivierre’s conviction and sentence. See United States v.
Ollivierre, 378 F.3d 412 (4th Cir. 2004). On January 24, 2005, the
Supreme Court of the United States granted Ollivierre’s petition
for writ of certiorari, vacated our judgment, and remanded the case
to this court for further consideration in light of United
States v. Booker, 543 U.S. ____, 125 S. Ct. 738 (2005). We vacate
the sentence and remand for resentencing.
In Booker, the Supreme Court held Blakely v. Washington,
542 U.S. 296 (2004), applied to the federal sentencing guidelines
and that the mandatory manner in which the guidelines required
courts to impose sentencing enhancements based on facts found by
the court by a preponderance of the evidence violated the Sixth
Amendment. Thus, when a defendant is sentenced under the mandatory
guidelines scheme, “[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, 543 U.S. at ___, 125 S. Ct. at
756.
In United States v. Hughes, 401 F.3d 540 (4th Cir. 2005),
we held that a sentence imposed under the pre-Booker mandatory
sentencing scheme that was enhanced based on facts found by the
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court, not by a jury, constitutes plain error. That error 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
guideline scheme. Hughes, 401 F.3d at 546-56.
Because the district court engaged in judicial
fact-finding to determine Ollivierre’s offense level and the
resulting guideline range was imposed in a mandatory manner, there
was a Sixth Amendment violation under Booker.1 On remand, the
court must calculate the appropriate guideline range, consider the
range in conjunction with other relevant factors under the
guidelines and 18 U.S.C.A. § 3553(a) (West 2000 & Supp. 2005), and
impose a sentence. If a court imposes a sentence outside the
guideline range, the district court must state its reasons for
doing so. Hughes, 401 F.3d at 546.
Accordingly, we vacate the sentence and remand for
further consideration in light of Booker and Hughes.2 We dispense
with oral argument because the facts and legal contentions are
1
The convictions were affirmed in our prior opinion and are
not before us now.
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 Ollivierre’s
sentencing.
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adequately presented in the materials before the court and argument
would not aid the decisional process.
VACATED AND REMANDED
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