UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4187
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JAMIE TASHAWN WILLIAMSON,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Florence. Terry L. Wooten, District Judge.
(CR-02-757)
Submitted: December 8, 2005 Decided: December 21, 2005
Before TRAXLER, KING, and DUNCAN, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
Ray Coit Yarborough, Jr., Florence, South Carolina, for Appellant.
J. Strom Thurmond, Jr., United States Attorney, Rose Mary Parham,
Assistant United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Florence, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Jamie Tashawn Williamson appeals his sentence in the District
of South Carolina on his conviction for being a felon in possession
of a firearm. By this appeal, Williamson makes two contentions:
(1) that his sentence was imposed in contravention of the Sixth
Amendment; and (2) that the sentencing court erroneously cross-
referenced the attempted murder provision of the United States
Sentencing Guidelines (the “Guidelines”) in calculating
Williamson’s sentence. As explained below, we vacate Williamson’s
sentence because it was imposed in violation of the Sixth
Amendment, and we do not address his Guidelines calculation claim.
I.
On July 23, 2002, the grand jury charged Williamson with being
a felon in possession of a firearm, in contravention of 18 U.S.C.
§ 922(g)(1). Williamson had pleaded guilty pursuant to a plea
agreement, and his presentence report (“PSR”) assigned him a base
offense level of 14 and placed him in criminal history category V.
The PSR recommended an enhancement because the firearm at issue was
stolen, an enhancement for using the firearm in connection with
another felony offense, and a reduction for acceptance of
responsibility. Williamson accepted the PSR’s recommendation but
the Government objected, asserting that the court should cross-
reference § 2A2.1(a)(1) of the Guidelines because Williamson used
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the firearm in an attempted murder. After hearing testimony from
the alleged victim, the court agreed with the Government and cross-
referenced § 2A2.1(a)(1) in calculating Williamson’s sentence. It
therefore assigned Williamson an offense level of 28, which it then
reduced to 25 for acceptance of responsibility. Combining offense
level 25 with criminal history category V yielded a sentencing
range of 100 to 125 months, and the court sentenced Williamson to
100 months in prison.
Williamson has timely noted his appeal and we possess
jurisdiction pursuant to 28 U.S.C. § 1291.
II.
Williamson asserts on appeal that his sentence was imposed in
contravention of the Sixth Amendment because it is supported by
judicially found facts.1 Because Williamson failed to object at
1
The Government contends on appeal that Williamson waived his
Sixth Amendment claim in his plea agreement by stating his
“understand[ing]” that he would be sentenced in conformity with the
Guidelines. See Appellee’s Br. at 7. We disagree with the
Government’s contention. Although we have recognized that a
defendant’s explicit waiver of the right to appeal a sentence
imposed within the statutory maximum constitutes a waiver of his
Sixth Amendment sentencing claims, see United States v. Blick, 408
F.3d 162, 172 (4th Cir. 2005), we have never held that an
“understanding” that a sentence would be imposed in a particular
manner constitutes a waiver of appeal rights. We observe that the
Second Circuit has recently rejected a similar contention. See
United States v. Hamdi, F.3d , No. 03-1307-CR, 2005 WL
3366948, *5-*7 (2d Cir. Dec. 12, 2005) (concluding that defendant’s
“agree[ment]” to be sentenced under the Guidelines did not waive
right to appeal sentence).
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sentencing on Sixth Amendment grounds, however, our review of his
claim is for plain error only. See United States v. Ebersole, 411
F.3d 517, 534 (4th Cir. 2005).
In United States v. Booker, the Supreme Court concluded that
the Sixth Amendment prohibits judicial factfinding under a
mandatory guidelines regime that results in a sentence greater than
the maximum justified solely by the facts found by a jury beyond a
reasonable doubt or admitted by the defendant. See 125 S. Ct. 738,
750 (2005); see also United States v. Hughes, 401 F.3d 540, 547
(4th Cir. 2005) (“[A] sentence exceeding the maximum allowed based
solely on the facts found by the jury [or admitted by the
defendant] violates the Sixth Amendment.”). In light of the Booker
mandate, Williamson’s sentence contravened the Sixth Amendment. By
his plea agreement, Williamson admitted only to being a felon in
possession of a firearm. That admission alone supports a base
offense level of 14, which combined with criminal history category
V yields a sentencing range of 33 to 41 months. See U.S.S.G. §
2K2.1(a)(6) (2002). Based on its finding that Williamson used the
firearm in an attempted murder, the sentencing court cross-
referenced § 2A2.1(a)(1) and sentenced Williamson to 100 months.
Because Williamson’s sentence exceeded that which the admitted
facts would have supported, it was imposed in contravention of the
Sixth Amendment. And such a Sixth Amendment error constitutes
reversible plain error. See Hughes, 401 F.3d at 547 (concluding
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that sentence imposed in contravention of defendant’s Sixth
Amendment right to jury trial is plainly erroneous and warrants
relief).
III.
Pursuant to the foregoing, we vacate Williamson’s sentence and
remand for such resentencing proceedings as may be appropriate.2
VACATED AND REMANDED
2
Because we vacate Williamson’s sentence on Sixth Amendment
grounds, we do not reach his contention that the sentencing court
erred in applying the § 2A2.1(a)(1) cross-reference. See Hughes,
401 F.3d at 556 n.15 (observing that we need not address Guidelines
calculations claims in every case involving error under Booker).
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