UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4286
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
MICHAEL L. STEVENS,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Charleston. David C. Norton, District Judge.
(CR-03-892)
Submitted: November 28, 2005 Decided: January 6, 2006
Before LUTTIG, SHEDD, and DUNCAN, Circuit Judges.
Affirmed in part, vacated in part, and remanded by unpublished per
curiam opinion.
Parks N. Small, Federal Public Defender, Columbia, South Carolina,
for Appellant. J. Strom Thurmond, Jr., United States Attorney,
Rhett DeHart, Assistant United States Attorney, Charleston, South
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Michael L. Stevens pled guilty, pursuant to a written
plea agreement, to distributing child pornography, in violation of
18 U.S.C. § 2252A(a)(2) (2000). He was sentenced to 130 months of
imprisonment. Citing Blakely v. Washington, 542 U.S. 296 (2004),
the predecessor to United States v. Booker, 125 S. Ct. 738 (2005),
Stevens contends that his Sixth Amendment right to a jury trial was
violated because he was sentenced on facts found by the court and
not by the jury, and that the district court erred in applying
enhancements under U.S. Sentencing Guidelines Manual
§ 2G2.2(b)(2)(B) and § 2G2.2(b)(3) (2002). For the reasons that
follow, we affirm Stevens’ conviction, but vacate his sentence and
remand for resentencing.
Stevens did not raise a Sixth Amendment challenge to the
Guidelines below; we therefore review for plain error. United
States v. Hughes, 401 F.3d 540, 547 (4th Cir. 2005). To
demonstrate plain error, Stevens must establish that error
occurred, that it was plain, and that it affected his substantial
rights. Id. 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
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reputation of judicial proceedings.” Id. at 555 (internal
quotation marks and citation omitted).
In Booker, the Supreme Court held that the mandatory
Guidelines scheme that provided for sentence enhancements based on
facts found by the court violated the Sixth Amendment. Booker, 125
S. Ct. at 746-48, 755-56. 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. Id. at 756-57. 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, not by a jury or admitted by the
defendant, constitutes plain error that affects the defendant’s
substantial rights and warrants reversal under Booker. Hughes, 401
F.3d at 546-56.
Here, Stevens maintains that he did not admit to the
facts underlying the district court’s five-level enhancement under
USSG § 2G2.2(b)(2)(B) (offense involved distribution for the
receipt or expectation of receipt of a thing of value, but not for
pecuniary gain) and four-level enhancement under USSG § 2G2.2(b)(3)
(offense involved material that portrays sadistic or masochistic
conduct). Therefore, he argues that the enhancements, found by a
preponderance of the evidence, violated his Sixth Amendment rights.
Because Stevens’ 130-month sentence exceeds the maximum authorized
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by the facts he admitted, we conclude that the district court
committed plain error in sentencing Stevens and that the error
requires resentencing. Id. at 547.1
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. See 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 imposing
a non-Guidelines sentence, as required by 18 U.S.C.A. § 3553(c)(2)
(West 2000 & Supp. 2005). Id. The sentence must be “within the
statutorily prescribed range and . . . reasonable.” Id.
Based on the foregoing, we affirm Stevens’ conviction and
vacate his sentence and remand for resentencing.2 We dispense with
oral argument because the facts and legal contentions are
1
As we noted in Hughes, “We of course offer no criticism of
the district judge, who followed the law and procedure in effect at
the time” of Stevens’ sentencing. Hughes, 401 F.3d at 545 n.4.
2
Because we vacate Stevens’ sentence, it is unnecessary for us
to reach Stevens’ challenges to his Guidelines calculation.
Hughes, 401 F.3d at 556 n.15.
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adequately presented in the materials before the court and argument
would not aid the decisional process.
AFFIRMED IN PART,
VACATED IN PART,
AND REMANDED
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