UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 03-4755
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
TIMOTHY DEWITT,
Defendant - Appellant.
On Remand from the United States Supreme Court.
(S. Ct. No. 04-6102)
Submitted: October 19, 2005 Decided: December 1, 2005
Before WIDENER, WILKINSON, and NIEMEYER, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
Eric B. Snyder, BAILEY & GLASSER, L.L.P., Charleston, West
Virginia, for Appellant. Charles T. Miller, Acting United States
Attorney, John L. File, 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Unpublished opinions are not binding precedent in this circuit.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:
This case is before us on remand from the United States
Supreme Court for further consideration in light of United
States v. Booker, 125 S. Ct. 738 (2005). In United States v.
Dewitt, 100 F. App. 145 (4th Cir. June 4, 2004) (unpublished),
vacated, 125 S. Ct. 1009 (2005), we affirmed Dewitt’s 168-month
sentence imposed after he pled guilty to distributing more than
five grams of crack cocaine on March 28, 2002. After reviewing
Dewitt’s appeal in light of Booker, we vacate his sentence and
remand for resentencing.
Dewitt contends that his sentence violates the Sixth
Amendment because the district court at sentencing held him
accountable for 214.7 grams of crack, see U.S. Sentencing
Guidelines Manual § 2D1.1(c)(1) (2002), enhanced his sentence for
possession of a firearm, see USSG § 2D1.1(b)(1), and assessed two
criminal history points based upon the court’s conclusion that
Dewitt was under a criminal justice sentence at the time he
committed the instant offense, see USSG § 4A1.1(d). Because Dewitt
did not raise the Sixth Amendment issue in the district court, we
review for plain error. See United States v. Hughes, 401 F.3d 540,
547 (4th Cir. 2005). To demonstrate plain error, Dewitt must
establish that error occurred, that it was plain, and that it
affected his substantial rights. Id. at 547-48. If a defendant
satisfies these requirements, this court’s “discretion is
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appropriately exercised only when failure to do so would result in
a miscarriage of justice, such as when the defendant is actually
innocent or the error seriously affects the fairness, integrity or
public reputation of judicial proceedings.” Id. at 555 (internal
quotation marks and citation omitted).
In Booker, the Supreme Court held that the mandatory
manner in which the Sentencing Guidelines required courts to impose
sentencing enhancements based on facts found by the court by a
preponderance of the evidence violated the Sixth Amendment. 125 S.
Ct. at 746, 750 (Stevens, J., opinion of the Court). The Court
remedied the constitutional violation by making the Guidelines
advisory through the removal of two statutory provisions that had
rendered them mandatory. Id. at 746 (Stevens, J., opinion of the
Court); id. at 756-67 (Breyer, J., opinion of the Court).
Here, the district court sentenced Dewitt under the
mandatory federal Sentencing Guidelines by determining drug
quantity, applying an enhancement for possession of a firearm, and
assessing two criminal history points based upon Dewitt’s status at
the time he committed the instant offense. These findings, among
others, yielded a Sentencing Guideline range of 168 to 188 months,
and the court sentenced Dewitt to a 168-month term of imprisonment.
At the plea hearing, Dewitt admitted that he distributed 13.7 grams
of crack but did not admit that he possessed a firearm. Thus,
using only the amount of drugs to which Dewitt admitted at the plea
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colloquy and excluding the enhancement for possession of a weapon
and the downward adjustment for acceptance of responsibility under
USSG § 3E1.1, see United States v. Evans, 416 F.3d 298, 300 n.4
(4th Cir. 2005), Dewitt’s total offense level would have been
twenty-six. See USSG § 2D1.1(c)(7). With a criminal history
category of III, the resulting guideline range would be seventy-
eight to eighty-seven months of imprisonment.1 USSG Ch. 5, Pt. A
(Sentencing Table). In light of Booker and Hughes, we find that
the district court’s plain error in sentencing Dewitt based on
facts found by the court affects his substantial rights and
warrants correction.2
Accordingly, we vacate Dewitt’s sentence and remand for
resentencing.3 We dispense with oral argument because the facts
1
We take no position on whether the district court’s
assessment of two criminal history points under USSG § 4A1.1(d)
violates the Sixth Amendment because, even assuming a criminal
history category of III, Dewitt is entitled to be resentenced.
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 Dewitt’s sentencing.
3
Although the 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
(Breyer, J., opinion of the Court). On remand, the district court
should first determine the appropriate sentencing range under the
guidelines, 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. Hughes, 401 F.3d at 546. 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) (West 2000 &
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and legal contentions are adequately presented in the materials
before the court and argument would not aid the decisional process.
VACATED AND REMANDED
Supp. 2005). Hughes, 401 F.3d at 546. The sentence must be
“within the statutorily prescribed range and . . . reasonable.”
Id. at 547.
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