UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 03-4871
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JAMES E. ORR, JR.,
Defendant - Appellant.
On Remand from the United States Supreme Court.
(Supreme Court No. 04-7590)
Submitted: October 21, 2005 Decided: December 16, 2005
Before LUTTIG, TRAXLER, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Robert C. Stone, Jr., Martinsburg, West Virginia, for Appellant.
Thomas E. Johnston, United States Attorney, Paul T. Camilletti,
Assistant United States Attorney, Martinsburg, West Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
A jury convicted James E. Orr, Jr., of the following
offenses: (1) possession of a sawed off shotgun, in violation of
26 U.S.C. §§ 5812, 5861(b), 5871 (2000), (2) knowingly receiving
and possessing a sawed off shotgun, in violation of 26 U.S.C.
§§ 5812, 5861(c), 5871 (2000), and (3) knowingly receiving and
possessing an unregistered sawed off shotgun, in violation of 26
U.S.C. §§ 5841, 5861(d), 5871 (2000). Orr’s base offense level was
eighteen. At the sentencing hearing, the district court overruled
Orr’s objections to the presentence report, enhanced Orr’s offense
level by two levels for obstruction of justice, denied Orr an
adjustment for acceptance of responsibility, and denied Orr a
departure for aberrant criminal behavior. Thus, Orr’s total
offense level was calculated to be twenty. With Orr’s criminal
history category of I, the guidelines range was thirty-three to
forty-one months. The court imposed a sentence of thirty-three
months for each count, to be served concurrently, two years of
supervised release, and $300 in special assessments.
We affirmed Orr’s conviction and sentence. See United
States v. Orr, No. 03-4871, 2004 WL 1663996 (4th Cir. July 27,
2004) (unpublished). The Supreme Court thereafter granted Orr’s
petition for writ of certiorari, vacated this court’s judgment and
remanded to this court for further consideration in light of United
States v. Booker, 125 S. Ct. 738 (2005). Having reconsidered Orr’s
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sentence in light of Booker and its progeny, we affirm his
conviction and sentence.
On remand, Orr asserts his sentence violated his Sixth
Amendment rights in light of Booker because the district judge
improperly applied the two-level enhancement for obstruction of
justice based on a judicial finding that Orr committed perjury.
Orr further argues that because of the perjury finding, the court
erroneously denied his request for a two-level reduction based on
acceptance of responsibility.
Booker applies to all cases pending on direct review at
the time it was decided. United States v. Booker, 125 S. Ct. at
769 (citing Griffith v. Kentucky, 479 U.S. 314, 328 (1987)).
Because Orr did not raise a Booker claim in the district court, his
challenge to his sentence is reviewed for plain error.1 See United
States v. Hughes, 401 F.3d 540, 547 (4th Cir. 2005). To
demonstrate plain error, a defendant must establish that error
occurred, that it was plain, and that it affected his substantial
rights. United States v. Olano, 507 U.S. 725, 731-32 (1993);
1
Although both Orr and the Government assert that the Booker
issue is preserved for appellate review, we conclude that Orr’s
objection to the application of the obstruction enhancement, which
was based on the asserted lack of evidentiary support for that
enhancement, did not preserve a claim that his sentence violated
his Sixth Amendment rights. However, even if we agreed that Orr’s
objection to the perjury enhancement in the district court properly
preserved his Booker claim on appeal, the circumstances of this
case would nevertheless dictate a conclusion that resentencing is
not required because Orr’s Sixth Amendment rights were not
infringed.
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Hughes, 401 F.3d at 547-48. If a defendant establishes these
requirements, the court’s “discretion is appropriately exercised
only when failure to do so would result in a miscarriage of
justice, such as when the defendant is actually innocent or the
error seriously affects the fairness, integrity or public
reputation of judicial proceedings.” Hughes, 401 F.3d at 555
(internal quotation marks and citation omitted).
In Booker, the Supreme Court held that the mandatory
guidelines scheme, which provided for sentence enhancements based
on facts found by the court rather than the jury, violated the
Sixth Amendment. The Court remedied the constitutional violation
by severing and excising the statutory provisions that mandate
sentencing and appellate review under the guidelines, thus making
the guidelines advisory. 125 S. Ct. at 746-48, 755-56 (Stevens,
J.); 125 S. Ct. at 756-57 (Breyer, J.). Subsequently, in Hughes,
this court held that a sentence that was imposed under the pre-
Booker mandatory sentencing scheme and was enhanced based on facts
found by the court, and not found by a jury or admitted by the
defendant, constitutes plain error that affects the defendant’s
substantial rights. Under Booker, resentencing is warranted when
the sentence “exceed[s] the maximum allowed based on the facts
found by the jury alone” and the record does not disclose what
discretionary sentence the district court would have imposed under
an advisory guideline scheme. Hughes, 401 F.3d at 546-47, 556.
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Here, the court’s finding that Orr committed perjury
subjected Orr to a two-level enhancement.2 Without this
enhancement, Orr’s offense level would have been eighteen. With a
criminal history category of I, the corresponding guidelines range
is twenty-seven to thirty-three months. Orr’s actual sentence of
thirty-three months thus does not exceed the maximum allowed based
on the facts found by the jury alone. Accordingly, because the
sentence imposed on Orr did not violate his Sixth Amendment rights,
as recognized in Booker, resentencing is not warranted.
We therefore affirm Orr’s conviction and sentence. We
deny Orr’s motion for release pending appeal. 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
2
In determining whether Sixth Amendment error occurred, the
sentence imposed must be compared to the permissible guideline
range before adjusting for acceptance of responsibility. See United
States v. Evans, 418 F.3d 298, 301 n.4 (4th Cir. 2005). As a
result, the fact that Orr did not receive a three-level reduction
for responsibility is not considered in the analysis of whether
resentencing is warranted.
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