UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 03-4838
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
DAVID MAURICE FULKS, a/k/a David Maurice
Wellington,
Defendant - Appellant.
On Remand from the United States Supreme Court.
(S. Ct. No. 04-8357)
Submitted: November 4, 2005 Decided: January 6, 2006
Before NIEMEYER, TRAXLER, and KING, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
Louis C. Allen, III, Federal Public Defender, John A. Dusenbury,
Jr., Assistant Federal Public Defender, Greensboro, North Carolina,
for Appellant. Anna Mills Wagoner, United States Attorney, Michael
A. DeFranco, Assistant United States Attorney, Greensboro, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
David Maurice Fulks, a/k/a David Maurice Wellington, was
convicted by a jury of two counts of possessing a firearm and one
count of possessing ammunition after having been convicted of a
crime punishable by imprisonment for a term exceeding one year in
violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2) (2000). The
district court sentenced Fulks to concurrent terms of fifty-eight
months in prison followed by three years of supervised release. On
appeal, Fulks asserted the district court clearly erred by imposing
a two-level enhancement under U.S. Sentencing Guidelines Manual
§ 2K2.1(b)(1)(A) (2002), because he contended the evidence was
insufficient for the court to find he possessed a third firearm in
connection with the offense. We determined the district court did
not clearly err and affirmed. United States v. Fulks, No. 03-4838
(4th Cir. Oct. 14, 2004) (unpublished). The Supreme Court
subsequently granted Fulks’s petition for certiorari, vacated this
court’s judgment, and remanded for further consideration in light
of United States v. Booker, 125 S. Ct. 738 (2005).
Fulks’s sentence was imposed before the decisions of
Booker and its predecessor, Blakely v. Washington, 542 U.S. 296
(2004), and he did not raise objections to his sentence based on
the mandatory nature of the sentencing guidelines or the district
court’s application of sentencing enhancements based on facts not
admitted by him or found by the jury beyond a reasonable doubt.
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Therefore, we review his sentence for plain error. United
States v. Hughes, 401 F.3d 540, 546-60 (4th Cir. 2005).
Over Fulks’s objection, the district court applied a two-
level enhancement based on the court’s determination he possessed
a third firearm in connection with the offense in addition to the
two firearms he was convicted of possessing. Based only on the
facts determined by the jury, Fulks’s offense level would have been
twenty. Because he was in criminal history category III, his
guideline range would have been forty-one to fifty-one months. The
fifty-eight month sentence imposed by the district court under a
mandatory guideline regime was therefore longer than the sentence
the district court could have imposed without violating the Sixth
Amendment. We therefore conclude plain error occurred in Fulks’s
sentencing under Hughes.*
Accordingly, we vacate Fulks’s sentence and remand for
resentencing. 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.” Booker, 125 S. Ct. at 767. On remand, the district
court should first determine the appropriate sentencing range under
*
Just as we noted in Hughes, “[w]e of course offer no
criticism of the district court judge, who followed the law and
procedure in effect at the time” of Fulks’s sentencing. Hughes,
401 F.3d at 545 n.4. 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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the guidelines, making all factual findings appropriate for that
determination. 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 guideline range,
the court should explain its reasons for the departure as required
by 18 U.S.C.A. § 3553(c)(2). Id. The sentence must be “within the
statutorily prescribed range and . . . reasonable.” Id.
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.
VACATED AND REMANDED
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