United States v. McCullum

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 05-4078

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

BRIAN WESLEY MCCULLUM,

Defendant - Appellant.

Appeal from the United States District Court for the Southern
District of West Virginia, at Charleston. Joseph Robert Goodwin,
District Judge. (CR-04-21)

Submitted: November 30, 2005 Decided: January 3, 2006

Before MICHAEL, TRAXLER, and SHEDD, Circuit Judges.

Affirmed in part, vacated in part, and remanded by unpublished per
curiam opinion.

Herbert L. Hively, II, Hurricane, West Virginia, for Appellant.
Kasey Warner, United States Attorney, Miller A. Bushong, III,
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Unpublished opinions are not binding precedent in this circuit.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:

Brian Wesley McCullum pled guilty, pursuant to a written

plea agreement, to one count of aiding and abetting possession with

intent to distribute cocaine, 21 U.S.C. § 841(a) (2000); and one

count of using a firearm during and in relation to a drug

trafficking crime, 18 U.S.C. § 924(c) (2000), and was sentenced to

24 months on the drug count and a consecutive 60 months on the

firearms count. At sentencing, the district court found, by a

preponderance of the evidence--and over McCullum’s objections--that

he was responsible for a total drug weight of 118 grams of cocaine,

and assigned a base offense level of 18. The court then awarded

McCullum a three-level reduction for acceptance of responsibility,

U.S. Sentencing Guidelines Manual § 3E1.1(a) (2004), resulting in

a total offense level of 15. With a criminal history category of

III, McCullum’s guidelines sentencing range was 24 to 30 months

imprisonment. The court imposed a sentence at the bottom of the

range. McCullum appeals, challenging his sentence under United

States v. Booker, ___U.S.___, 125 S. Ct. 738 (2005). McCullum

argues that his base offense level with respect to the § 841(a)

conviction was calculated, in part, based on judicial factfinding

in violation of Booker. We agree.

McCullum’s base offense level, without the challenged

drug weights and before making any appropriate adjustments for

acceptance of responsibility, would have been 12 and his guideline

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range would have been 15 to 21 months imprisonment. Therefore,

because McCullum’s sentence was greater than that authorized by the

facts he admitted in his guilty plea, we vacate his sentence and

remand for resentencing in accordance with Booker.* We affirm

McCullum’s sentence on the firearms count.

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 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. 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. § 3553(c)(2) (2000). Id. The

sentence must be “within the statutorily prescribed range and . .

*
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 McCullum’s sentencing.

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. 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 IN PART,
AND REMANDED

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