UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4430
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
CHARLES EDWARD HATTEN,
Defendant - Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Huntington. Robert C. Chambers,
District Judge. (CR-02-232)
Submitted: October 21, 2005 Decided: November 22, 2005
Before WILKINSON, SHEDD, and DUNCAN, Circuit Judges.
Affirmed in part, vacated in part, and remanded by unpublished per
curiam opinion.
Matthew A. Victor, VICTOR, VICTOR & HELGOE, L.L.P., Charleston,
West Virginia, for Appellant. Kasey Warner, United States
Attorney, Miller A. Bushong, III, Assistant United States Attorney,
Beckley, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Following a guilty plea to conspiracy to manufacture and
distribute more than fifty grams of methamphetamine, in violation
of 21 U.S.C. § 846 (2000), and using, carrying, and discharging a
firearm in relation to a drug trafficking offense, in violation of
18 U.S.C.A. § 924(c)(1)(A)(iii), (j)(1) (West 2000 & Supp. 2005),
the district court sentenced Charles Edward Hatten to 520 months in
prison. Hatten appeals, arguing that he should be permitted to
withdraw his guilty plea and challenging the validity of his
sentence. We affirm Hatten’s conviction, vacate his sentence, and
remand for resentencing.
Hatten contends that the government breached the plea
agreement by arguing for the application of the murder cross
reference of U.S. Sentencing Guidelines Manual § 2D1.1(d)(1)
(2003). We agree with the district court’s conclusion that the
government did not breach the plea agreement.
The parties are in apparent agreement that Hatten is
entitled to be resentenced in light of United States v. Hughes, 401
F.3d 540 (4th Cir. 2005). Accordingly, although we affirm Hatten’s
conviction, we vacate his sentence and remand for resentencing in
light of Hughes.* Because we are vacating Hatten’s sentence, we
need not address Hatten’s other sentencing claims.
*
Just as we noted in Hughes, “[w]e of course offer no
criticism of the district judge, who followed the law and procedure
in effect at the time” of Hatten’s sentencing. 401 F.3d at 545
n.4.
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Even though the Sentencing Guidelines are no longer
mandatory, United States v. Booker, 125 S. Ct. 738 (2005), makes
clear that a sentencing court must still “consult [the] Guidelines
and take them into account when sentencing.” Id. at 767. On
remand, the district court should first determine the appropriate
sentencing range under the Guidelines, making all factual findings
appropriate for that determination. 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. Hughes, 401 F.3d at 546. If that sentence falls outside
the Guidelines range, the court should explain its reasons for
imposing a non-Guidelines sentence as required by 18 U.S.C.A.
§ 3553(c)(2) (West Supp. 2005). The sentence must be “within the
statutorily prescribed range and . . . reasonable.” Hughes, 401
F.3d at 546-47.
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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