UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 03-4578
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JAMES LAWRENCE WILSON,
Defendant - Appellant.
On Remand from the United States Supreme Court.
(S. Ct. No. 04-5732)
Submitted: November 9, 2005 Decided: December 5, 2005
Before NIEMEYER and GREGORY, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed in part; vacated and remanded in part by unpublished per
curiam opinion.
Andrew B. Banzhoff, Asheville, North Carolina, for Appellant.
Gretchen C. F. Shappert, United States Attorney, Charlotte, North
Carolina; Donald D. Gast, Assistant United States Attorney,
Asheville, North Carolina, 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Unpublished opinions are not binding precedent in this circuit.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. We previously affirmed James Lawrence Wilson’s
conviction for conspiracy to distribute fifty or more grams of
methamphetamine and his eighty-seven month sentence. United
States v. Wilson, No. 03-4578 (4th Cir. May 7, 2004) (unpublished).
The Supreme Court vacated our decision and remanded Wilson’s case
for further consideration in light of United States v. Booker, 125
S. Ct. 738 (2005).
A Sixth Amendment error occurs when a district court
imposes a sentence greater than the maximum permitted based on
facts found by a jury or admitted by the defendant. Booker, 125 S.
Ct. at 756. Because Wilson did not raise a Sixth Amendment
challenge to his guidelines sentence in the district court, our
review is for plain error. United States v. Hughes, 401 F.3d 540,
547 (4th Cir. 2005).
The facts found by the jury are that Wilson was
responsible for fifty or more grams of methamphetamine distribution
as part of the charged conspiracy.* This drug quantity corresponds
with a base offense level of twenty-six, see USSG § 2D1.1(c)(7),
and a sentencing range of sixty-three to seventy-eight months’
*
The district court’s determination that the conspiracy
created a substantial risk of harm to human life was not a factor
considered by the jury. Accordingly, for the purpose of the
guidelines calculation we do not consider this factor under U.S.
Sentencing Guidelines Manual § 2D1.1(b)(5)(B) (2002).
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imprisonment. See USSG Ch. 5, Pt. A, table. (applying Wilson’s
criminal history category of I). Wilson’s sentence of eighty-seven
months exceeds this range. Because this error affects Wilson’s
substantial rights, we conclude it is plainly erroneous. See
Hughes, 401 F.3d at 547-48.
Accordingly, although we affirm Wilson’s conviction for
the reasons stated in our prior opinion of May 7, 2004, we vacate
the sentence imposed by the district court and remand for
resentencing in accordance with Booker. 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 IN PART;
VACATED AND REMANDED IN PART
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