UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-5128
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JAMARRIO DOBBS, a/k/a Sleepy,
Defendant - Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Charleston. David A. Faber, Chief
District Judge. (CR-04-47)
Submitted: November 9, 2005 Decided: January 17, 2006
Before WILKINSON, NIEMEYER, and LUTTIG, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Andrew J. Katz, THE KATZ WORKING FAMILIES LAW FIRM, LC, Charleston,
West Virginia, for Appellant. Kasey Warner, United States
Attorney, John J. Frail, Assistant United States Attorney,
Charleston, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Jamarrio Dobbs pled guilty to a one count indictment
charging possession with intent to distribute 50 grams or more of
cocaine base, in violation of 21 U.S.C. § 841(a)(1) (2000). Dobbs
was sentenced to 188 months of imprisonment, followed by five years
of supervised release. He appeals his sentence.
Dobbs argues on appeal that the district court erred
under United States v. Booker, 125 S. Ct. 738 (2005), in setting
his base offense level at 32 based on drug quantity pursuant to
U.S. Sentencing Guidelines Manual § 2D1.1(a)(3)(c)(2) (2004), and
in enhancing his offense level based on facts not alleged in the
indictment or admitted by Dobbs. Because Dobbs preserved these
issues by objecting to the presentence report based upon Blakely v.
Washington, 542 U.S. 296 (2004), our review is de novo. See United
States v. Mackins, 315 F.3d 399, 405 (4th Cir. 2003) (“If a
defendant has made a timely and sufficient Apprendi[*] sentencing
objection in the trial court, and so preserved his objection, we
review de novo.”). When a defendant preserves a Sixth Amendment
error, “we must reverse unless we find this constitutional error
harmless beyond a reasonable doubt, with the Government bearing the
burden of proving harmlessness.” Id. (citations omitted); see
United States v. White, 405 F.3d 208, 223 (4th Cir. 2005)
(discussing difference in burden of proving that error affected
*
Apprendi v. New Jersey, 530 U.S. 466 (2000).
- 2 -
substantial rights under harmless error standard in Fed. R. App. P.
52(a), and plain error standard in Fed. R. App. P. 52(b)).
In Booker, the Supreme Court held that the mandatory
manner in which the federal sentencing guidelines required courts
to impose sentencing enhancements based on facts found by the court
by a preponderance of the evidence violated the Sixth Amendment.
125 S. Ct. at 746, 750. The Court remedied the constitutional
violation by severing two statutory provisions, 18 U.S.C.A.
§§ 3553(b)(1), 3742(e) (West 2000 & Supp. 2004), thereby making the
guidelines advisory. United States v. Hughes, 401 F.3d 540, 546
(4th Cir. 2005).
Our review of the record leads us to conclude that Dobbs’
base offense level was properly determined and is supported by the
drug quantity alleged in the indictment to which he pled guilty.
However, the imposition of the two-level enhancement of his offense
level for possession of a dangerous weapon at the time of the
offense, pursuant to USSG § 2D1.1(b)(1), and the two-level
enhancement based on his role in the offense, pursuant to USSG §
3B1.1(c), was error under the Sixth Amendment as applied in Booker
because the facts supporting these enhancements were not alleged in
the indictment or admitted by Dobbs. We conclude, however, that
ultimately there was no Sixth Amendment violation because, absent
the enhancements, Dobbs’ guideline range would have been 168 to 210
months of imprisonment, and his 188-month sentence was within that
- 3 -
guideline range. See United States v. Evans, 416 F.3d 298, 300-01
(4th Cir. 2005).
Dobbs also argues that the district court erred in
applying the federal sentencing guidelines as mandatory in violation
of Booker. Because Dobbs raises this claim for the first time on
appeal, his claim is reviewed for plain error. White, 405 F.3d at
215. In White, we held the mandatory application of the guidelines
is plain error; however, we also held prejudice from the error
cannot be presumed. Id. at 219. Accordingly, Dobbs must show the
district court’s mandatory application of the sentencing guidelines
was actually prejudicial and affected the outcome of the
proceedings. Id. at 223. Under this standard, although the
district court committed error in treating the guidelines as
mandatory, see Hughes, 401 F.3d at 547-48, Dobbs is not entitled to
relief. We find the record contains no nonspeculative basis on
which to conclude that the district court would have sentenced Dobbs
to a lower sentence had the court proceeded under an advisory
guideline scheme, and thus Dobbs has failed to demonstrate actual
prejudice.
Accordingly, we affirm Dobbs’ conviction and sentence.
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
- 4 -