UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-5113
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
TIMOTHY LEE BEASLEY,
Defendant - Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Beckley. David A. Faber, Chief
District Judge. (CR-04-78)
Submitted: January 4, 2006 Decided: January 30, 2006
Before WILKINSON, SHEDD, and DUNCAN, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
Mary Lou Newberger, Federal Public Defender, Jonathan D. Byrne,
Appellate Counsel, Megan J. Schueler, Assistant Federal Public
Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Charleston, West
Virginia, for Appellant. Kasey Warner, United States Attorney,
John L. File, Assistant United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Beckley, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Defendant Timothy Lee Beasley appeals the sentence the
district court imposed on him after he pled guilty to distributing
cocaine base in violation of 21 U.S.C. § 841(a)(1) (2000). The
district court calculated Beasley’s sentence by applying the U.S.
Sentencing Guidelines, which were mandatory at the time of the
sentencing hearing. See United States v. Hammoud, 381 F.3d 316,
353 (4th Cir. 2004). Based in part on Beasley’s prior convictions,
it sentenced him to seventy-two months. Beasley objected at the
sentencing hearing that his sentence was in violation of Blakely v.
Washington, 124 S. Ct. 2531 (2004), and thus preserved his argument
on appeal. See United States v. Rodriguez, No. 04-4609, slip op.
at 6 (4th Cir. Jan. 3, 2006); United States v. Mackins, 315 F.3d
399, 405 (4th Cir. 2003).
Beasley makes two arguments. First, Beasley contends that the
district court violated his Sixth Amendment rights when it enhanced
his sentence due to his prior convictions. His contention is
misplaced. Although a judge cannot generally enhance a sentence
above the statutory maximum based on facts not found by a jury
beyond a reasonable doubt, United States v. Booker, 125 S. Ct. 738,
756 (2005), this rule does not apply to the fact of a prior
conviction, see id.; Almendarez-Torres v. United States, 523 U.S.
224, 247 (1998). Beasley suggests that this exception is no longer
good law, but we recently recognized its continued vitality.
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United States v. Cheek, 415 F.3d 349, 352-53 (4th Cir. 2005).
There was, therefore, no Sixth Amendment violation.
Second, Beasley argues that the district court erred in
treating the Guidelines as mandatory because after Booker they are
only advisory. See 125 S. Ct. at 756-57. We have noted that the
remedial scheme announced in Booker applies both to defendants
whose Sixth Amendment rights were violated and to defendants who
suffered no constitutional violation. See United States v. Hughes,
401 F.3d 540, 547 (4th Cir. 2005). Since the district court
applied the Guidelines in a mandatory fashion when it sentenced
Beasley, it committed legal error. See United States v. White, 405
F.3d 208, 216-17 & n.7 (4th Cir. 2005).
Because Beasley objected below, we must inquire whether the
district court’s error was harmless. See Rodriguez, slip op. at 6.
As to this question, the government bears the burden of proof. Id.
at 7; see also White, 405 F.3d at 223 (noting that the distinction
between harmless error and plain error is who bears the burden of
proof). The government has not met this burden and does not oppose
remanding the case for resentencing. See Br. of Appellee at 6-7,
9. As such, we vacate Beasley’s sentence and remand for
resentencing. On remand, the district court should sentence
Beasley pursuant to the procedures set forth in Hughes. See 401
F.3d at 546-47.
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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 in the decisional process.
VACATED AND REMANDED
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