UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4486
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
REYNOLD GELIN,
Defendant - Appellant.
No. 04-4516
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
DELIUS PHILIUS, a/k/a Haitian Johnny, a/k/a
Deilius Philius, a/k/a Dehilius Philius, a/k/a
Delius Hilius,
Defendant - Appellant.
Appeals from the United States District Court for the District of
South Carolina, at Florence. C. Weston Houck, Senior District
Judge. (CR-03-474)
Submitted: January 13, 2006 Decided: March 3, 2006
Before MICHAEL, TRAXLER, and SHEDD, Circuit Judges.
Affirmed in part, vacated in part, and remanded by unpublished per
curiam opinion.
David B. Betts, Columbia, South Carolina; James P. Rogers,
Columbia, South Carolina, for Appellants. Alfred William Walker
Bethea, Jr., Assistant United States Attorney, Florence, South
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
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PER CURIAM:
In these consolidated appeals, Delius Philius and Reynold
Gelin appeal their convictions and sentences. The Appellants pled
guilty pursuant to plea agreements to one count of conspiracy to
distribute and possess with intent to distribute 50 grams or more
of cocaine base or crack cocaine and 5 kilograms of cocaine, in
violation of 18 U.S.C. §§ 841(b)(1)(A), 846 (2000). Counsel has
filed a brief pursuant to Anders v. California, 386 U.S. 738
(1967), stating there were no meritorious issues for appeal except
to the extent Gelin’s sentence violated the Sixth Amendment because
it was based upon facts not admitted by him. Both Appellants filed
pro se supplemental briefs and the Government did not file a brief.
We affirm the convictions and Philius’ sentence and we vacate and
remand Gelin’s sentence.
We find no error with respect to the Rule 11 proceeding
during which both Appellants pled guilty. We further find no error
in the calculations arrived at in the Presentence Investigation
Reports.
With respect to Philius’ sentence, we find no error. In
United States v. Booker, 543 U.S. 220, 125 S. Ct. 738 (2005), the
Supreme Court held that Blakely v. Washington, 542 U.S. 296 (2004),
applied to the federal sentencing guidelines and that the mandatory
manner in which the guidelines required courts to impose sentencing
enhancements based on facts found by the court by a preponderance
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of the evidence violated the Sixth Amendment. Thus, when a
defendant pleads guilty and is sentenced under the mandatory
guidelines scheme, “[a]ny fact (other than a prior conviction)
which is necessary to support a sentence exceeding the maximum
authorized by the facts established by a plea of guilty or a jury
verdict must be admitted by the defendant or proved to a jury
beyond a reasonable doubt.” Booker, 543 U.S. at , 125 S. Ct. at
756. In addition, treating the guidelines as mandatory rather than
only advisory is error. United States v. White, 405 F.3d 208, 216-
17 (4th Cir.), cert. denied, 126 S. Ct. 668 (2005).
Philius did not object to either the use of the
enhancements not admitted by him or found by a jury, nor did he
object to the mandatory use of the sentencing guidelines. Thus,
review is for plain error. United States v. Olano, 507 U.S. 725,
732 (1993). Philius stipulated in his plea agreement to an offense
level of 38 based on the amount of drugs for which he was
responsible. As a result of other enhancements to the offense
level for leadership role and the reduction for acceptance of
responsibility, his adjusted offense level was 39. He was
sentenced to 262 months’ imprisonment. Had Philius been given an
offense level of 38, based solely upon the facts to which he
admitted, and not including a reduction for acceptance of
responsibility, United States v. Evans, 416 F.3d 298, 300 n.4 (4th
Cir. 2005), his sentencing range would have been 235 to 293 months’
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imprisonment. Because his imprisonment does not exceed the maximum
authorized by the facts he admitted, no Sixth Amendment error
occurred. Id. at 300-01.
Likewise, Philius cannot establish plain error with
respect to the mandatory application of the guidelines. In White,
405 F.3d at 216-17, we held treating the guidelines as mandatory
was plain error in light of Booker. Id. at 216-17. We declined to
presume prejudice, id. at 217-22, holding that the “prejudice
inquiry, therefore, is . . . whether after pondering all that
happened without stripping the erroneous action from the whole, .
. . the judgment was . . . substantially swayed by the error.” Id.
at 223 (internal quotation marks and citations omitted). To make
this showing, a defendant must “demonstrate, based on the record,
that the treatment of the guidelines as mandatory caused the
district court to impose a longer sentence than it otherwise would
have imposed.” Id. at 224. Because “the record as a whole
provide[d] no nonspeculative basis for concluding that the
treatment of the guidelines as mandatory ‘affect[ed] the district
court’s selection of the sentence imposed,’” id. at 223 (quoting
Williams v. United States, 503 U.S. 193, 203 (1992)) (first
alteration added), we concluded the error did not affect the
defendant’s substantial rights and affirmed the sentence. Id. at
225. Philius cannot show that the treatment of the guidelines as
mandatory affected his sentence.
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With respect to Gelin’s sentence, we find his sentence
violated the Sixth Amendment. Based on his guilty plea to 5
kilograms of cocaine and 50 grams of crack cocaine, he was eligible
for an offense level of 32. That results in a sentencing
guidelines range of 121 to 151 months’ imprisonment. Gelin’s
actual range of imprisonment was much higher and as a result he was
sentenced to 324 months’ imprisonment, or significantly higher than
a sentence based upon conduct to which he admitted. Because the
court imposed a sentence using the sentencing guidelines as
mandatory and using facts not admitted by Gelin or found by a jury,
the sentence violated the Sixth Amendment and should be vacated and
remanded for resentencing pursuant to Booker.*
*
Just as we noted in United States v. Hughes, 401 F.3d 540,
545 n.4 (4th Cir. 2005), “[w]e of course offer no criticism of the
district judge, who followed the law and procedure in effect at the
time” of Gelin’s sentencing. Although the 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 (Breyer, J., opinion of the Court).
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. Hughes, 401 F.3d
at 546. 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). Hughes, 401 F.3d at 546. The sentence
must be “within the statutorily prescribed range and . . .
reasonable.” Id. at 547.
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We have considered the issues raised in Philius’ pro se
supplemental brief and find them without merit. We have likewise
considered the issues raised by Gelin in his brief. Because the
sentence will be remanded for resentencing, we will not review
issues relating to the enhancements. With the exception of Gelin’s
Sixth Amendment challenge, we find the remaining issues to be
without merit.
In accordance with Anders, we have reviewed the entire
record in this case for any other meritorious issue and have found
none. Accordingly, we affirm the convictions and Philius’
sentence. We vacate Gelin’s sentence and remand for proceedings
consistent with Hughes, 401 F.3d at 546 (citing Booker, 543 U.S. at
, 125 S. Ct. at 764-65, 767). We deny the motion to remand as
moot. 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
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