UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 03-4773
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
LANTIS JETON YOUNG,
Defendant - Appellant.
On Remand from the United States Supreme Court.
(S. Ct. No. 04-6461)
Submitted: November 18, 2005 Decided: January 10, 2006
Before WILLIAMS and TRAXLER, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Randolph M. Lee, Charlotte, North Carolina, for Appellant.
Gretchen C. F. Shappert, United States Attorney, Charlotte, North
Carolina; Amy E. Ray, Assistant United States Attorney, Asheville,
North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
This case is before the court on remand from the United
States Supreme Court. We previously affirmed Lantis Jeton Young’s
conviction. United States v. Young, No. 03-4773, 100 F. App’x 214
(4th Cir. 2004) (unpublished). The Supreme Court vacated our
decision and remanded Young's case to us for further consideration
in light of United States v. Booker, 125 S. Ct. 738 (2005).
In Young’s supplemental brief, filed at this court’s
direction after the Supreme Court’s remand, he contends the
sentences on count one, conspiracy to possess with intent to
distribute cocaine and cocaine base, count three, possession with
intent to distribute cocaine, and count five, carjacking, were
based on facts not found by the jury, and that the life
imprisonment term for count two, drug trafficking resulting in
death, was erroneous in light of Booker because it was imposed
under a mandatory sentencing guidelines scheme.1 The Government
acknowledges that the sentence imposed for count five, carjacking,
was based on facts not found by the jury. However, the Government
argues that the error does not affect Young’s substantial rights
1
Young also argues that because the verdict did not apportion
the culpability for the conspiracy to distribute cocaine and
cocaine base, the sentence imposed runs contrary to this court’s
decision in United States v. Collins, 415 F.3d 304 (4th Cir. 2005).
However, this count was grouped with count four, use of a handgun
in relation to drug trafficking resulting in death, for purposes of
calculating the guidelines range. As a result, Young’s relative
culpability was not a factor in the calculation.
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because the error will not affect the total amount of time Young is
required to serve.
Under U.S. Sentencing Guidelines Manual § 3D1.2(b)
(2003), the probation officer grouped together three of the counts
of conviction: conspiracy to possess with intent to distribute
cocaine and cocaine base (count one), use and carry of a handgun
during a drug trafficking crime resulting in death (count two), and
possession with intent to distribute cocaine (count three). For
those counts, the recommended base offense level was forty-three.
Two levels were added for obstruction of justice, for an adjusted
offense level of forty-five. The offense level was reduced to
forty-three, the highest level in the sentencing table.2
For the carjacking count (count five), USSG § 2B3.1
(robbery) called for a base offense level of twenty. Six levels
were added because a firearm was used. Four levels were added
because a person was abducted to facilitate the commission of the
offense, and two levels were added because the offense involved
carjacking, for an adjusted offense level of thirty-two. After the
multiple-count adjustment under USSG § 3D1.4, the combined adjusted
offense level was found to be forty-five, with a total offense
level of forty-three. For the count alleging using and carrying
a firearm during the commission of a drug trafficking crime (count
2
Under USSG Ch.5 Pt. A, comment. (n.2), a total offense level
of more than 43 is to be treated as an offense level of 43.
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four), as well as the count alleging using and carrying a firearm
during and in relation to a crime of violence (count six), the
guideline sentence is the minimum term required by statute.3
The judge sentenced Young to two terms of life imprisonment on
counts one and two, two terms of 240 months’ imprisonment on counts
four and six to run consecutively with each other and the life
imprisonment terms, and one term of 180 months’ imprisonment on
count five to run concurrently with the other terms of
imprisonment.
This court has identified two types of Booker error: a
violation of the Sixth Amendment, and a failure to treat the
sentencing guidelines as advisory. United States v. Hughes, 401
F.3d 540, 552 (4th Cir. 2005). A Sixth Amendment error occurs when
the district court imposes a sentence greater than the maximum
permitted based on facts found by a jury or admitted by the
defendant. Booker, 125 S. Ct. at 756. Because Young did not raise
a Sixth Amendment challenge or object to the mandatory application
of the guidelines in the district court, review is for plain error.
Hughes, 401 F.3d at 547.
To demonstrate plain error, an appellant must establish
that an error occurred, that it was plain, and that it affected his
substantial rights. United States v. Olano, 507 U.S. 725, 731-32
3
Young acknowledges that the terms of imprisonment he received
for counts four and six do not offend Booker.
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(1993); Hughes, 401 F.3d at 547-48. If an appellant meets these
requirements, the court’s “discretion is appropriately exercised
only when failure to do so would result in a miscarriage of
justice, such as when the defendant is actually innocent or the
error seriously affects the fairness, integrity or public
reputation of judicial proceedings.” Hughes, 401 F.3d at 555
(internal quotation marks and citation omitted). While the
mandatory application of the guidelines constitutes plain error,
United States v. White, 405 F.3d 208, 217 (4th Cir. 2005), a
defendant who seeks resentencing on this ground must show actual
prejudice, i.e., a “nonspeculative basis for concluding that the
treatment of the guidelines as mandatory ‘affect[ed] the district
court’s selection of the sentence imposed.’” Id. at 223 (quoting
Williams v. United States, 503 U.S. 193, 203 (1992)).
Young was sentenced to life imprisonment on counts one
and two. On each of these counts, the offense level under the
sentencing guidelines was forty-three, USSG § 2A1.1(a); that
offense level was based on the jury’s finding that Young committed
a murder during the course of the conspiracy. Because the offense
level was based on the jury’s verdict, and because an offense level
of forty-three calls for a life sentence under the guidelines
regardless of the defendant’s criminal history, Young’s sentence on
these counts does not violate the Sixth Amendment. USSG Ch. 5, Pt.
A, Sentencing Table. Moreover, nothing in the sentencing
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transcript or elsewhere in the record suggests that the district
court would have given Young a lower sentence if the guidelines
were not mandatory. Therefore, Young has not established plain
error that warrants resentencing under United States v. White, 405
F.3d 208, 223 (4th Cir. 2005).
As the Government concedes, Young’s 180-month sentence on
count five, carjacking, was based on facts not found by the jury or
admitted by Young. However, we conclude that because the sentence
on count five runs concurrently with the life sentences on counts
one and two, he cannot show that his substantial rights have been
violated by the imposition of a sentence based on judge-found facts
on count five. See United States v. Ellis, 326 F.3d 593, 599-600
(4th Cir. 1993).
Finally, the 240-month sentences on counts three, four,
and six are statutory mandatory minimum sentences. See 18 U.S.C.
§ 924(c)(1) (2000); 21 U.S.C. § 841(b)(1)(C) (2000). As such, we
find they are not impacted by Booker.
Accordingly, we reinstate our June 16, 2004 opinion
affirming Young’s conviction, and we affirm Young's sentence after
our reconsideration in light of Booker. We deny Young’s motion to
remand for resentencing. We dispense with oral argument because
the facts and legal contentions are adequately presented in the
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materials before the court and argument would not aid the
decisional process.
AFFIRMED
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