ON REHEARING
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4064
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
LESLIE FOUNTRESA FREEMAN,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Graham C. Mullen, Chief
District Judge. (CR-02-191-MU)
Submitted: June 30, 2005 Decided: February 13, 2006
Before WIDENER, WILKINSON, and DUNCAN, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
Chiege O. Kalu Okwara, LAW OFFICE OF CHIEGE O. KALU OKWARA,
Charlotte, North Carolina, for Appellant. Gretchen C. F. Shappert,
United States Attorney, D. Scott Broyles, 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Unpublished opinions are not binding precedent in this circuit.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:
Leslie Fountresa Freeman appealed her convictions and
sentence for possession with intent to distribute 500 grams or more
of cocaine under 21 U.S.C. § 841(a)(1) (2000), and importation of
cocaine into the United States under 21 U.S.C. § 952(a) (2000).
Initially we affirmed Freeman’s convictions and sentence. Before
the mandate issued, however, Freeman filed a petition for panel
rehearing and rehearing en banc again challenging her convictions,
and for the first time challenging her sentence under Blakely v.
Washington, 542 U.S. 296 (2004), and in anticipation of United
States v. Booker, 125 S. Ct. 738 (2005). Because Booker constitutes
an intervening change in the law bearing on the outcome of this
appeal, we grant rehearing, vacate Freeman’s sentence, and remand
for resentencing. We continue to affirm Freeman’s convictions.
In light of Booker, United States v. Hughes, 401 F.3d 540
(4th Cir. 2005), and United States v. White, 405 F.3d 208 (4th Cir.
2005), we find that the district court plainly erred in imposing
Freeman’s sentence under the then mandatory sentencing guidelines
scheme.* We therefore vacate Freeman’s sentence and remand for
resentencing consistent with Booker. Although the Sentencing
Guidelines are no longer mandatory, Booker makes clear that a
*
Just as we noted in Hughes, 401 F.3d at 545 n.4, “[w]e of
course offer no criticism of the district judge, who followed the
law and procedure in effect at the time” of Freeman’s sentencing.
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 -
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. Hughes, 401 F.3d at 546. 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 imposing
a non-Guidelines sentence, 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. 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.
VACATED AND REMANDED
- 3 -