UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4061
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
THOMAS AUGUSTIN,
Defendant - Appellant.
On Remand from the United States Supreme Court.
(S. Ct. No. 04-7728)
Submitted: September 30, 2005 Decided: November 29, 2005
Before WILKINSON, NIEMEYER, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Richard F. Della Fera, ENTIN, DELLA FERA & GREENBERG, P.A., Fort
Lauderdale, Florida, for Appellant. Gretchen C. F. Shappert,
United States Attorney, Melissa L. Rikard, Assistant United States
Attorney, Charlotte, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Thomas Augustin pled guilty to possession of fifty grams
or more of cocaine base (crack) and 500 grams or more of cocaine
with intent to distribute, 21 U.S.C. § 841(a) (2000), and was
sentenced to a term of 210 months imprisonment. We affirmed his
sentence and denied rehearing. United States v. Augustin, No. 04-
4061, 2004 WL 1447924 (4th Cir. June 29, 2004) (unpublished). The
Supreme Court subsequently granted Augustin’s petition for
certiorari, vacated this court’s judgment, and remanded his case
for further proceedings in light of United States v. Booker, 125 S.
Ct. 738 (2005).
Augustin was sentenced 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 judicial fact
finding rather than facts he admitted. Therefore, we review his
sentence for plain error. United States v. Hughes, 401 F.3d 540,
547 (4th Cir. 2005). Augustin now contends that the district court
plainly erred under Booker in applying the guidelines as mandatory
and in enhancing his sentence for possession of a firearm during
the offense, pursuant to U.S. Sentencing Guidelines Manual
§ 2D1.1(b)(1) (2003), because the enhancement violated the Sixth
Amendment. With respect to the district court’s mandatory
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application of the guidelines, the district court gave no
indication that it would impose a lower sentence under an advisory
guideline system. Therefore, Augustin cannot show actual
prejudice, and resentencing is not authorized on this ground alone.
United States v. White, 405 F.3d 208, 223-24 (4th Cir. 2005).
Augustin’s base offense level was 38 under § 2D1.1(c)(1)
(1.5 kilograms or more of crack). He admitted responsibility for
more than 1.5 kilograms of crack. With the two-level weapon
enhancement and a three-level adjustment for acceptance of
responsibility, his final offense level was 37. Augustin was in
criminal history category I, which gave him a guideline range of
210-262 months. The district court imposed a sentence of 210
months. Without the enhancement for possession of a firearm during
the offense, Augustin’s offense level would have been 38 and the
guideline range, based on facts he admitted, would have been 235-
293 months. For purposes of determining Booker error, we consider
the guideline range based on facts Augustin admitted before the
reduction for acceptance of responsibility. United States v.
Evans, 416 F.3d 298, 300 n.4 (4th Cir. 2005). Augustin’s sentence
of 210 months imprisonment thus does not exceed the maximum
authorized based on the facts he admitted. Id. at 300-01. We
conclude that no Sixth Amendment violation occurred.
We therefore affirm the sentence imposed by the district
court. We dispense with oral argument because the facts and legal
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contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED
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