UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4009
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
RANDY GREENE,
Defendant - Appellant.
On Remand from the United States Supreme Court.
(S. Ct. No. 04-8009)
Submitted: September 30, 2005 Decided: November 30, 2005
Before LUTTIG, MOTZ, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Mary Lou Newberger, Federal Public Defender, Megan J. Schueler,
Assistant Federal Public Defender, Jonathan D. Byrne, Appellate
Counsel, Charleston, West Virginia, for Appellant. Kasey Warner,
United States Attorney, W. Chad Noel, 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Unpublished opinions are not binding precedent in this circuit.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:
Randy Greene pled guilty to possession of methamphetamine
with intent to distribute, 21 U.S.C. § 841(a) (2000), and was
sentenced to a term of seventy-eight months imprisonment. We
affirmed his sentence. United States v. Greene, No. 04-4009, 2004
WL 2126766 (4th Cir. Sept. 24, 2004) (unpublished). The Supreme
Court subsequently granted certiorari, vacated this court’s
judgment in light of United States v. Booker, 125 S. Ct. 738
(2005), and remanded Greene’s case to this court for further
proceedings. For the reasons explained below, we affirm his
sentence.
Greene’s sentence was imposed before Booker and its
predecessor, Blakely v. Washington, 542 U.S. 296 (2004), were
decided, 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.
United States v. Hughes, 401 F.3d 540, 547 (4th Cir. 2005).
When Greene was arrested, law enforcement officers seized
methamphetamine, around fifty grams of marijuana, small amounts of
prescription drugs, and thirteen firearms from Greene’s home.
Greene made a statement in which he admitted selling 112 grams of
methamphetamine. In his presentence interview with the probation
officer, Greene again admitted responsibility for these drug
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quantities, and he did not contest the district court’s
determination that he was responsible for 224.051 grams of
marijuana equivalent, which gave him a base offense level of 26.
U.S. Sentencing Guidelines Manual § 2D1.1(c)(7) (2003). Greene did
contest the two-level enhancement for possession of a firearm
during the offense; however, the court overruled his objection and
applied the enhancement pursuant to USSG § 2D1.1(b)(1). The
resulting offense level was 28. Greene was in criminal history
category I. His guideline range was 78-97 months.
Because Greene admitted selling 112 grams of
methamphetamine, a quantity that in itself is sufficient to support
the base offense level of 26 used by the district court, see USSG
§ 2D1.1(c)(7) (50-250 grams of methamphetamine), we conclude that
no Sixth Amendment violation occurred when the district court
adopted the base offense level recommended in the presentence
report. Although Greene challenged the two-level enhancement for
possession of a firearm, elimination of the enhancement would only
reduce the guideline range to 63-78 months. Greene’s sentence of
seventy-eight months imprisonment is thus within the range that
would apply based only on facts that he admitted. Consequently,
the sentence imposed did not violate the Sixth Amendment. United
States v. Evans, 416 F.3d 298, 300-01 (4th Cir. 2005).*
*
Greene does not claim that the district court erred in
applying the guidelines as mandatory. In any event, the record
does not reveal any nonspeculative basis for concluding that the
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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
district court would have imposed a lower sentence under an
advisory guideline scheme. See United States v. White, 405 F.3d
208, 223 (4th Cir. 2005).
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