UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 03-4514
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
RICHARD DEAN WALKER, a/k/a Ricky Walker,
Defendant - Appellant.
On Remand from the United States Supreme Court.
(S. Ct. No. 04-7805)
Submitted: September 23, 2005 Decided: November 30, 2005
Before LUTTIG, TRAXLER, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Heather D. Foster, Jaqueline Ann Hallinan, HALLINAN LAW OFFICES,
P.L.L.C., Charleston, West Virginia, for Appellant. Kasey Warner,
United States Attorney, John L. File, Assistant United States
Attorney, Charleston, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Richard Dean Walker was convicted, after a guilty plea,
of aiding and abetting the possession of marijuana with intent to
distribute. We affirmed his sentence and denied rehearing. United
States v. Walker, No. 03-4514, 2004 WL 1367581 (4th Cir. June 18,
2004) (unpublished).
Walker filed a petition for writ of certiorari in the
United States Supreme Court. His petition was granted, and this
court’s judgment was vacated, in light of the decision in United
States v. Booker, 125 S. Ct. 738 (2005). Walker v. United States,
125 S. Ct. 1345 (2005). Walker’s case has been remanded to this
court for further proceedings.
Walker’s sentence was imposed before the decisions in
Booker and its predecessor, Blakely v. Washington, 542 U.S. 296
(2004), and he did not raise objections to his sentence based on
the mandatory nature of the sentencing guidelines or the district
court’s application of sentencing enhancements based on facts he
did not admit. Therefore, we review his sentence for plain error.
See United States v. Hughes, 401 F.3d 540, 547 (4th Cir. 2005).
The district court calculated Walker’s guideline range as
follows:
Base offense level 16 USSG § 2D1.1 (10-20 kilograms marijuana)
+ 2 USSG § 3C1.1 (obstruction of justice)
Final offense level 18
Criminal history category: I
Guidelines range: 27-33 months
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The district court imposed a sentence of thirty months
imprisonment, a three-year term of supervised release, and a $2000
fine. Walker contested the adjustment for obstruction of justice
at sentencing, but the district court determined that the
adjustment applied because Walker had made a serious attempt to
mislead the probation officer. Without the adjustment for
obstruction of justice, Walker’s offense level would have been 16
and his guideline range would have been 21-27 months. Because the
increase was based on judge-found facts that Walker did not admit,
the resulting sentence violated the Sixth Amendment.* However,
Walker has completed his prison sentence and been released.
Therefore, a remand for resentencing is unnecessary unless Walker
was otherwise prejudiced. We conclude that he was not.
Under 21 U.S.C.A. § 841(b)(1)(D) (West Supp. 2005),
Walker was and remains subject to a term of supervised release of
“at least two years.” Because the statutory maximum for his
offense is five years imprisonment, see id., it is a Class D
felony. 18 U.S.C. § 3559(a)(4) (2000). Under USSG § 5D1.2(a)(2),
the supervised release term for a Class D felony is two to three
years. Therefore, the Sixth Amendment error committed by the
*
Just as we noted in Hughes, “[w]e of course offer no
criticism of the district court judge, who followed the law and
procedure in effect at the time” of Walker’s sentencing. Hughes,
401 F.3d at 545 n.4. See generally Johnson v. United States, 520
U.S. 461, 468 (1997) (stating that an error is “plain” if “the law
at the time of trial was settled and clearly contrary to the law at
the time of appeal”).
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district court in determining Walker’s offense level did not affect
the statutory or guideline provisions that governed the applicable
term of supervised release. The district court had discretion to
impose a term of supervised release of between two and three years.
The record does not reveal any basis for concluding that the court
would have imposed a lesser term under an advisory guidelines
system. In announcing the sentence, the district court stated,
“[t]he three-year term of supervised release is imposed to allow
the maximum period of time to monitor your efforts to attain a law-
abiding lifestyle following your period of incarceration.” The
district court could have imposed a two-year term of supervised
release, but exercised its discretion to impose a three-year term.
Therefore, Booker does not require resentencing on this ground.
Under 21 U.S.C. § 841(b)(1)(D), a maximum fine of
$250,000 was authorized. For an offense level of 18, the Fine
Table in USSG § 5E1.2(c)(3) prescribes a fine of $6000 to $60,000.
For an offense level of 16, the Fine Table prescribes a fine of
$5000 to $50,000. The $2000 fine imposed by the district court was
a downward departure below the range the district court believed to
be applicable and is below the range that would have applied
without the obstruction of justice adjustment. In imposing the
fine, the court made the following findings pursuant to 18 U.S.C.
§ 3572(a) (2000):
The defendant’s income, earning capacity and financial
resources are as stated in the presentence report; a fine
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within the guideline range would constitute an undue
burden upon the defendant; there is no pecuniary loss
inflicted upon others as a result of the offense of
conviction; the evidence shows no illegally obtained
gains from the offense of conviction still in the
defendant’s possession. The court finds that the
defendant, through prison earnings and potential earnings
during his term of supervised release, does have the
ability to pay a fine below the guidelines, which the
court has imposed.
No Sixth Amendment error occurred with respect to the
fine and the record provides no suggestion that the district court
would have imposed a lesser fine under an advisory guidelines
system.
Accordingly, we affirm the sentence imposed by the
district court. 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
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