United States v. Anderson

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 04-4972

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

JEVAN ANDERSON,
Defendant - Appellant.

Appeal from the United States District Court for the Eastern
District of North Carolina, at New Bern. Terrence W. Boyle,
District Judge. (CR-97-34)

Submitted: November 21, 2005 Decided: January 3, 2006

Before MICHAEL and MOTZ, Circuit Judges, and HAMILTON, Senior
Circuit Judge.

Vacated and remanded by unpublished per curiam opinion.

James B. Craven, III, Durham, 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Unpublished opinions are not binding precedent in this circuit.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 appeal concerns Jevan Anderson’s resentencing

following a second remand from this court. Anderson was convicted

under 21 U.S.C. § 846 (2000) for conspiracy to distribute and to

possess with intent to distribute crack cocaine.

No drug quantity was charged in the indictment and the

jury made no specific findings as to drug quantity. Based upon the

evidence presented at trial, at sentencing the district court found

that Anderson was responsible for 1176.525 grams of crack cocaine

and 1056.7 grams of cocaine powder, yielding a base offense level

of 36. Combined with Anderson’s criminal history category of IV,

his sentencing range under the Federal Sentencing Guidelines was

262 to 327 months in prison. Initially, however, the district

court sentenced Anderson to life in prison pursuant to 21 U.S.C.

§ 841(b)(1)(A) (2000), based on Anderson’s 1984 and 1996 felony

drug convictions. In Anderson’s first appeal, this court affirmed

his conviction, but vacated Anderson’s sentence and remanded for

resentencing because we concluded that Anderson’s 1996 felony drug

conviction violated the prohibition against double jeopardy and

therefore could not be used to enhance his sentence.

Upon resentencing, the parties conceded that because drug

quantity had not been alleged in Anderson’s indictment or presented

to the jury, his sentence could not be enhanced based on drug

quantity. Consequently, Anderson’s statutory penalty was governed

by 21 U.S.C. § 841(b)(1)(C) (2000). The government sought to

enhance Anderson's sentence pursuant to 21 U.S.C. § 851 (2000),

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based on the 1984 felony drug conviction. However, the district

court concluded that under the newly decided Apprendi v. New

Jersey, 530 U.S. 466 (2000), Anderson’s sentence could not be

enhanced based on the prior conviction. Therefore, the court

sentenced him below the guideline range to twenty years in prison,

the statutory maximum without enhancement.

The government appealed and Anderson filed a cross-

appeal. We agreed with the government that Apprendi did not

overrule the holding in Almendarez-Torres v. United States, 523

U.S. 224, 235 (1998), that prior felony convictions that trigger

enhanced sentences are sentencing enhancements rather than elements

of the offense. Therefore, we concluded that Anderson’s maximum

statutory penalty was thirty years under 28 U.S.C. § 841(b)(1)(C)--

not twenty years as the district court concluded. Rejecting the

claims raised in Anderson’s cross-appeal, we vacated Anderson’s

sentence and remanded the case for a second time for resentencing

within the thirty-year statutory maximum.

Based on the previously calculated guideline range, upon

remand the district court sentenced Anderson to 262 months in

prison, the bottom of the guideline range. Anderson once again

appealed. Initially, counsel filed an Anders1 brief, stating that,
in his opinion there were no meritorious grounds for appeal, but

arguing that this court’s second remand was a general remand,

thereby enabling Anderson to challenge his sentence enhancement

under 21 U.S.C. § 851 and to revisit the issue of drug quantity.

1
Anders v. California, 386 U.S. 738 (1967).

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However, in light of the Supreme Court’s subsequently issued

decision in United States v. Booker, 125 S. Ct. 738 (2005), counsel

filed a supplemental brief asserting that Anderson’s sentence

violated the Sixth Amendment. Anderson filed a pro se supplemental

brief asserting a Booker claim and other sentencing issues. The

government also filed a brief conceding that, in light of Booker,

Anderson’s sentence must be vacated and his case remanded for

resentencing.

Anderson preserved his Sixth Amendment objection by

asserting it in the district court. Accordingly, we review this

claim de novo and “must reverse unless we find this constitutional

error harmless beyond a reasonable doubt with the Government

bearing the burden of proving harmlessness.” United States v.
Mackins, 315 F.3d 399, 405 (4th Cir. 2003) (citation omitted). In

Booker, the Supreme Court held that the federal Sentencing

Guidelines’ mandatory scheme, which provides for sentencing

enhancements based on facts found by the court, violated the Sixth

Amendment. 125 S. Ct. at 746 (Stevens, J., opinion of the Court).
The Court remedied the constitutional violation by making the

guidelines advisory through the removal of two statutory provisions

that had rendered them mandatory. Id. at 746 (Stevens, J., opinion
of the Court); id. at 756-67 (Breyer, J., opinion of the Court).

Anderson argues that the district court erred by

attributing to him for sentencing purposes 1176.525 grams of

cocaine base and 1056.7 grams of powder cocaine. The government

concedes Booker error and we find that, in the absence of jury

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findings on specific drug quantities, the government cannot

demonstrate that any error in calculating Anderson’s sentence was

harmless.2

For these reasons, we vacate Anderson’s sentence and

remand for proceedings consistent with Booker.3 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

(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 the

determination. United States v. Hughes, 401 F.3d 540, 546 (4th
Cir. 2005). 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 non-guidelines sentence,

as required by 18 U.S.C.A. § 3553(c)(2) (West 2000 & Supp. 2005).

2
Just as we noted in United States v. Hughes, 401 F.3d 540,
546 (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 Anderson’s sentencing.
3
As stated earlier, Anderson seeks to assert other claims on
appeal. However, consideration of these claims is foreclosed by
the mandate rule. United States v. Bell, 5 F.3d 64, 66 (4th Cir.
1993) (stating doctrine compels compliance on remand with dictates
of a superior court and forecloses relitigation of issues expressly
or implicitly decided by appellate court). In accordance with
Anders, we have reviewed the entire record in this case and have
found no other meritorious issues for appeal.

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Hughes, 401 F.3d at 546. The sentence must be “within the

statutorily prescribed range and . . . reasonable.” Id. at 547.

We deny counsel’s motion to withdraw. 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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