UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4819
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
PAUL S. ROBERTS,
Defendant - Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Bluefield. David A. Faber, Chief
District Judge. (CR-03-226)
Submitted: October 7, 2005 Decided: January 5, 2006
Before LUTTIG, MICHAEL, and TRAXLER, Circuit Judges.
Affirmed in part, vacated in part, and remanded by unpublished per
curiam opinion.
Gregory J. Campbell, CAMPBELL LAW OFFICES, Charleston, West
Virginia, for Appellant. Kasey Warner, United States Attorney,
John L. File, Assistant United States Attorney, Beckley, West
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Paul S. Roberts appeals his seventy-month sentence
imposed after he pled guilty to distribution of fifty grams or more
of crack cocaine, in violation of 21 U.S.C. § 841(a)(1) (2000).
Citing United States v. Booker, 125 S. Ct. 738 (2005), Roberts
contends that the district court erred in sentencing him under a
mandatory Sentencing Guidelines scheme. Roberts does not challenge
his conviction on appeal. We affirm Roberts’ conviction, vacate
the sentence, and remand for further proceedings.1
Roberts asserts that he should be resentenced in light of
Booker because the district court sentenced him under a mandatory
Sentencing Guidelines scheme. In United States v. White, 405 F.3d
208 (4th Cir. 2005), we held that treating the Guidelines as
mandatory constitutes error under Booker. See id. at 216-17.
Because Roberts preserved this error for our review, we must
reverse unless the government demonstrates that the error is
harmless. See Fed. R. Crim. P. 52(a) (“[A]ny error . . . that does
not affect substantial rights must be disregarded.”); White, 405
F.3d at 223 (discussing difference in burden of proving that error
affected substantial rights under harmless error standard in Rule
52(a) and plain error standard in Fed. R. Crim. P. 52(b)). Our
1
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 Roberts’ sentencing.
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review of the record as a whole leads us to conclude that the
Government, as it concedes, has not met its burden of demonstrating
that the error in sentencing Roberts under a mandatory Sentencing
Guidelines scheme does not affect his substantial rights. See
White, 405 F.3d at 223. Thus, the error is not harmless.
Accordingly, we vacate Roberts’ sentence and remand for
further proceedings.2 We also affirm Roberts’ conviction. 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 IN PART,
AND REMANDED
2
Although the 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
(Breyer, J., opinion of the Court). On remand, the district court
should first determine the appropriate sentencing range under 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. Hughes, 401 F.3d at 546. If that sentence falls outside
the Guidelines range, the court should explain its reasons for the
departure as required by 18 U.S.C.A. § 3553(c)(2) (West 2000 &
Supp. 2005). Hughes, 401 F.3d at 546. The sentence must be
“within the statutorily prescribed range and . . . reasonable.”
Id. at 547.
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