UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 03-4979
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
TONY ANTHONY HEARNE,
Defendant - Appellant.
On Remand from the United States Supreme Court.
(S. Ct. No. 04-7741)
Submitted: October 26, 2005 Decided: December 7, 2005
Before WIDENER and SHEDD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Vacated and remanded by unpublished per curiam opinion.
Louis C. Allen, III, Federal Public Defender, Eric D. Placke,
Assistant Federal Public Defender, Greensboro, North Carolina, for
Appellant. Anna Mills Wagoner, United States Attorney, Angela H.
Miller, Assistant United States Attorney, Greensboro, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Tony Anthony Hearne pled guilty to possession of a
firearm by a convicted felon, 18 U.S.C. § 922(g)(1) (2000) (Count
One), and possession of counterfeit reserve notes, 18 U.S.C.A.
§ 472 (West Supp. 2005) (Count Three). The district court departed
upward from the applicable guideline range and imposed a sentence
of 205 months imprisonment for Count Three and a concurrent 120-
month sentence (the statutory maximum) for Count One. We affirmed
the sentence and subsequently denied rehearing. United States v.
Hearne, No. 03-4979 (4th Cir. June 29, 2004) (unpublished). The
Supreme Court later granted Hearne’s petition for certiorari,
vacated this court’s judgment in light of United States v. Booker,
125 S. Ct. 738 (2005), and remanded the case for further
proceedings. Hearne has since filed pro se motions requesting a
remand for resentencing, appointment of new counsel, and leave to
file a pro se supplemental brief.
Hearne’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 not
admitted by him or found by the jury beyond a reasonable doubt.
Therefore, we review his sentence for plain error. United
States v. Hughes, 401 F.3d 540, 546-60 (4th Cir. 2005).
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Over Hearne’s objection, the district court applied an
enhanced base offense level of 26, U.S. Sentencing Guidelines
Manual § 2K2.1(a)(1) (2003), based on the court’s determination
that he possessed two firearms in addition to the Ruger revolver
charged in the indictment. The court also applied a two-level
enhancement for possession of three firearms. Based only on the
facts Hearne admitted, and before adjustment for acceptance of
responsibility, USSG § 3E1.1, see United States v. Evans, 416 F.3d
298, 300 n.4 (4th Cir. 2005), his offense level would have been 28.
Because he was in criminal history category VI, his guideline range
would have been 140-175 months. The 205-month sentence imposed by
the district court therefore exceeded the maximum authorized based
on the facts Hearne admitted. The sentence thus meets the standard
for plain error that must be recognized set out in Hughes.*
Accordingly, we vacate the sentence imposed by the
district court and remand for resentencing. We grant Hearne’s pro
se motions for remand and to file a pro se supplemental brief, but
deny his motion for new counsel. We note that we previously
concluded that the district court did not clearly err in finding
that Hearne possessed a MAC-10 or similar semiautomatic weapon, and
*
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 Hearne’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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our conclusion is not affected by Booker. However, our prior
decision that the court’s one-level upward departure was warranted
should not restrict the district court in determining the
appropriate sentence on remand.
Although the sentencing 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. 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. Id. 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). Id. The sentence must be
“within the statutorily prescribed range and . . . reasonable.”
Id. 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.
VACATED AND REMANDED
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