UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 03-4930
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
SILAS THOMAS KING,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Lacy H. Thornburg,
District Judge. (CR-01-210; CR-01-211)
Submitted: November 28, 2005 Decided: January 9, 2006
Before TRAXLER, KING, and DUNCAN, Circuit Judges.
Affirmed in part, vacated in part, and remanded by unpublished per
curiam opinion.
Sue Genrich Berry, BOWEN, BERRY & POWERS, P.L.L.C., Wilmington,
North Carolina, for Appellant. Gretchen C. F. Shappert, United
States Attorney, Holly A. Pierson, Assistant United States
Attorney, Charlotte, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Silas Thomas King appeals his convictions and sentences
for conspiracy to commit armed bank robbery, in violation of 18
U.S.C. § 371 (2000); conspiracy to commit money laundering, in
violation of 18 U.S.C. § 1956(h) (2000); four counts of armed bank
robbery and aiding and abetting, in violation of 18 U.S.C. §§ 2,
2113(d) (2000); four counts of using and carrying a firearm during
and in relation to a crime of violence and aiding and abetting, in
violation of 18 U.S.C. §§ 2, 924(c) (2000); possession of a firearm
by a convicted felon, in violation of 18 U.S.C. § 922(g)(1) (2000);
and possession of ammunition by a convicted felon, in violation of
18 U.S.C. § 922(g)(1) (2000).
King was convicted after a jury trial for his
participation in a string of violent bank robberies. For the
reasons that follow, we affirm the convictions but vacate the
sentences and remand for resentencing.
King contends that the district court’s admission of
business records violated his rights under the Confrontation Clause
and the rule of Crawford v. Washington, 541 U.S. 36 (2004). King
did not object on these grounds in the district court, and thus
this court’s review is for plain error. See United States v.
Olano, 507 U.S. 725, 731-32 (1993).
In Crawford, the Supreme Court held that the Sixth
Amendment’s Confrontation Clause does not permit the introduction
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of out-of-court testimonial evidence unless the witness is
unavailable and the defendant had a prior opportunity for cross-
examination. Crawford, 541 U.S. at 68. Notably, the Court
discussed certain types of hearsay that “by their nature were not
testimonial — for example, business records or statements in
furtherance of a conspiracy.” Id. at 56. Accordingly, we conclude
that the admission of business records against King was not plain
error, and that King’s convictions should stand. See United States
v. Jamieson, 427 F.3d 394, 411 (6th Cir. 2005) (business records
not “testimonial” under the rule in Crawford).
Next, King argues that enhancements to his sentence
violate the Supreme Court’s ruling in United States v. Booker, 125
S. Ct. 738 (2005), and that the district court misapplied the
sentencing guidelines in calculating his sentence. In Booker, the
Supreme Court applied the rationale of Blakely v. Washington, 542
U.S. 296 (2004), to the federal sentencing guidelines and held that
the mandatory guidelines scheme that provided for sentence
enhancements based on facts found by the court by a preponderance
of the evidence violated the Sixth Amendment. Booker, 125 S. Ct.
at 746-48, 755-56 (Stevens, J., opinion of the Court). King did
not object on these grounds in the district court, and so we review
for plain error. United States v. Hughes, 401 F.3d 540, 547 (4th
Cir. 2005).
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We conclude that King’s guideline sentencing range was
enhanced based on facts not found by the jury or admitted by King,
in violation of Booker.1 The government concedes that Booker
errors occurred and that resentencing is appropriate. We agree and
therefore vacate King’s sentence and remand for resentencing.2
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
1
Just as we noted in Hughes, “[w]e of course offer no
criticism of the district judge, who followed the law and procedure
in effect at the time” of King’s sentencing. Hughes, 401 F.3d at
545 n.4; see generally Johnson v. United States, 520 U.S. 461, 468
(1997) (stating that an error is “plain” if "the law at the time of
trial was settled and clearly contrary to the law at the time of
appeal").
2
Because we conclude that resentencing is appropriate in light
of Booker and the government’s concession, we decline to address
King’s other arguments regarding improper application of the
sentencing guidelines. These issues can be addressed by the
district court when his sentence is recalculated.
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