UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 03-4645
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
DONALD LYNN FIELDS,
Defendant - Appellant.
On Remand from the United States Supreme Court.
(S. Ct. No. 04-9114)
Submitted: December 28, 2005 Decided: February 9, 2006
Before WIDENER, MICHAEL, and MOTZ, Circuit Judges.
Affirmed in part; vacated and remanded in part by unpublished per
curiam opinion.
James Wyda, Federal Public Defender, Martin G. Bahl, Staff
Attorney, Baltimore, Maryland, for Appellant. Rod J. Rosenstein,
United States Attorney, Debra L. Dwyer, Assistant United States
Attorney, Baltimore, Maryland, 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Unpublished opinions are not binding precedent in this circuit.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 Supreme
Court of the United States. We previously affirmed Donald Lynn
Fields’ convictions and sentence for two counts of possession of a
firearm and ammunition as a convicted felon, both in violation of
18 U.S.C. § 922(g)(1) (2000). United States v. Fields, No. 03-4645
(4th Cir. Sept. 15, 2004) (unpublished). The Supreme Court vacated
our decision and remanded Fields’ case for further consideration in
light of United States v. Booker, 543 U.S. 220, 125 S. Ct. 738
(2005).
A Sixth Amendment error occurs when a district court
imposes a sentence greater than the maximum permitted based on
facts found by a jury or admitted by the defendant. Booker, 543
U.S. at ___, 125 S. Ct. at 756. Because Fields 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.
United States v. Hughes, 401 F.3d 540, 547 (4th Cir. 2005).
The facts that are supported by the jury verdict are that
Fields, a convicted felon, possessed a firearm and ammunition.
Grouped together, these facts correspond with an offense level of
twenty, see United States Sentencing Guidelines Manual
§§ 2K2.1(a)(4)(A) & 3D1.2(d)(2002), and a sentencing range of
forty-one to fifty-one months’ imprisonment. See USSG Ch. 5, Pt.
A, table (based on Fields’ criminal history category of III
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(three)). Fields’ sentence of sixty-three months exceeds this
range. Because this error affects Fields’ substantial rights, we
conclude it is plainly erroneous. See Hughes, 401 F.3d at 547-48.
Accordingly, we vacate the sentence imposed by the
district court and remand for resentencing in accordance with
Booker. 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. On remand, the district court
should first determine the appropriate sentencing range under the
guidelines, making all factual findings appropriate for that
determination. See Hughes, 401 F.3d at 546 (applying Booker on
plain error review). 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.
Id. If that sentence falls outside the guidelines range, the court
should explain its reasons for the departure as required by 18
U.S.C.A. § 3553(c)(2) (West 2000 & Supp. 2005). Id. The sentence
must be “within the statutorily prescribed range and . . .
reasonable.” Id. at 546-47. We affirm Fields’ convictions for the
reasons stated in our prior opinion of September 15, 2004. We
dispense with oral argument because the facts and legal contentions
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are adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED IN PART;
VACATED AND REMANDED IN PART
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