UNPUBLISHED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Affirmed in part, vacated in part, and remanded by unpublished per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Unpublished opinions are not binding precedent in this circuit.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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