UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 03-4856
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ROBERT EARL LOWRY,
Defendant - Appellant.
On Remand from the United States Supreme Court.
(S. Ct. No. 04-8722)
Submitted: November 18, 2005 Decided: January 6, 2006
Before LUTTIG, SHEDD, and DUNCAN, Circuit Judges.
Affirmed in part; vacated and remanded in part by unpublished per
curiam opinion.
Kelly L. Greene, STUBBS & PERDUE, P.A., New Bern, North Carolina,
for Appellant. Frank D. Whitney, United States Attorney, Anne M.
Hayes, Christine Witcover Dean, Assistant United States Attorneys,
Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
This case is before the court on remand from the United
States Supreme Court. We previously affirmed Robert Earl Lowry’s
convictions and sentences for two counts of distribution of cocaine
base, one count of possession of a firearm in the furtherance of
drug trafficking, and one count of possession of a firearm as a
convicted felon, in violation of 18 U.S.C. §§ 922, 924 (2000) and
21 U.S.C. § 841 (2000). United States v. Lowry, No. 03-4856 (4th
Cir. Nov. 22, 2004) (unpublished). The Supreme Court vacated our
decision and remanded Lowry’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 Lowry did not raise a Sixth Amendment
challenge or object to the mandatory application of the guidelines
in the district court, our review is for plain error. United
States v. Hughes, 401 F.3d 540, 547 (4th Cir. 2005).
The Government’s indictment did not specify a drug
quantity; consequently, the jury’s verdict on grouped counts one,
three, and four supports a finding that Lowry is responsible for an
indeterminate quantity of cocaine base. This corresponds with a
base offense level of twelve, see U.S. Sentencing Guidelines Manual
§ 2D1.1(c)(14) (2002), and a sentencing range of fifteen to
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twenty-one months’ imprisonment. USSG Ch. 5, Pt. A, table (based
on Lowry’s criminal history category of III). Alternatively,
grouping the offenses under USSG § 2K2.1 results in an offense
level of fourteen, with a corresponding sentencing range of
twenty-one of twenty-seven months. See USSG § 2K2.1(a)(7). The
sentence imposed by the district court on counts one, three, and
four exceeds either range.1 Because this amounts to error that
affects Lowry’s substantial rights, we conclude his sentence is
plainly erroneous.2 See Hughes, 401 F.3d at 547-48.
Accordingly we vacate Lowry’s sentence with regard to
counts one, three, and four, and we remand for resentencing in
accordance with Booker. We affirm Lowry’s sentence under count two
of the indictment. We affirm Lowry’s convictions for the reasons
stated in our opinion of November 22, 2004. 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
1
Count two (possession of a firearm in the furtherance of drug
trafficking) required a mandatory minimum consecutive sentence of
five years. See 18 U.S.C. § 924(c)(1)(A)(i) (2000). Accordingly,
the sentence on count two was not affected by the district court’s
application of the sentencing guidelines.
2
Just as we noted in United States v. Hughes, 401 F.3d 540,
545 n.4 (4th Cir. 2005), “[w]e of course offer no criticism of the
district judge, who followed the law and procedure in effect at the
time” of Lowry’s sentencing. 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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remand, the district court should first determine the appropriate
sentencing range under the Guidelines, making all factual findings
appropriate for that determination. See United States v. Hughes,
401 F.3d 540, 546 (4th Cir. 2005) (applying Booker on plain error
review). The court should consider this sentencing range along
with the other factors described in 18 U.S.C. § 3553(a) (2000), 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. § 3553(c)(2) (2000). Id. The
sentence must be “within the statutorily prescribed range and . . .
reasonable.” Id. at 546-47. 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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