UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4541
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ERIKA LEIGH PURYEAR,
Defendant - Appellant.
No. 04-4546
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
DAVID ELLIOTT LEEDS,
Defendant - Appellant.
No. 04-4547
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
IRA DEXTER MOUNT,
Defendant - Appellant.
Appeals from the United States District Court for the Middle
District of North Carolina, at Durham. James A. Beaty, Jr.,
District Judge. (CR-03-474)
Submitted: February 10, 2006 Decided: March 1, 2006
Before LUTTIG, TRAXLER, and KING, Circuit Judges.
Affirmed in part, vacated in part, and remanded by unpublished per
curiam opinion.
Thomas N. Cochran, Assistant Federal Public Defender, Greensboro,
North Carolina; William L. Osteen, Jr., Greensboro, North Carolina;
Ames C. Chamberlin, Greensboro, North Carolina, for Appellants.
Paul Alexander Weinman, Assistant United States Attorney, Angela
Hewlett Miller, OFFICE OF THE UNITED STATES ATTORNEY, Greensboro,
North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
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PER CURIAM:
Erika Puryear, David Leeds, and Ira Mount pled guilty to
one count of possession of stolen mail, in violation of 18 U.S.C.
§ 1708 (2000). Counsel for Appellants filed a brief pursuant to
Anders v. California, 386 U.S. 738 (1967), raising as a potential
issue that Appellants’ sentences violated Blakely v. Washington,
542 U.S. 296 (2004), and United States v. Booker, 543 U.S. 220, 125
S. Ct. 738 (2005). They argue that their sentences must be vacated
because the district court treated the federal sentencing
guidelines as mandatory and applied sentencing enhancements based
on factual findings that were neither alleged in the indictment nor
admitted by them, and the court did not consider 18 U.S.C.A.
§ 3553(a) (West 2000 & Supp. 2005) when sentencing them. We affirm
the convictions, vacate the sentences, and remand for resentencing.
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.
543 U.S. at ___, 125 S. Ct. at 746, 750 (Stevens, J., opinion of
the Court). The Court remedied the constitutional violation by
severing two statutory provisions, 18 U.S.C.A. § 3553(b)(1) (West
Supp. 2005) (requiring sentencing courts to impose a sentence
within the applicable guideline range), and 18 U.S.C.A. § 3742(e)
(West 2000 & Supp. 2005) (setting forth appellate standards of
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review for guideline issues), thereby making the guidelines
advisory. United States v. Hughes, 401 F.3d 540, 546 (4th Cir.
2005) (citing Booker, 543 U.S. at ___, 125 S. Ct. at 756-67
(Breyer, J., opinion of the Court)).
After Booker, courts must calculate the appropriate
guideline range, consider the range in conjunction with other
relevant factors under the guidelines and 18 U.S.C.A. § 3553(a),
and impose a sentence. If a district court imposes a sentence
outside the guideline range, the court must state its reasons for
doing so. Hughes, 401 F.3d at 546. This remedial scheme applies
to any sentence imposed under the mandatory guidelines, regardless
of whether the sentence violates the Sixth Amendment. Id. at 547
(citing Booker, 543 U.S. at ___, 125 S. Ct. at 769 (Breyer, J.,
opinion of the Court)).
Here, the district court sentenced Appellants under the
mandatory federal sentencing guidelines and established a total
offense level by determining amount of loss, number of victims
involved, and whether the Defendants possessed device-making
equipment. The resulting guideline ranges exceeded those
authorized by the admitted conduct. Thus, the sentences, based on
facts found by the district court at sentencing, violate the Sixth
Amendment.
In accordance with Anders, we have reviewed the entire
record in these cases for any other meritorious issues on appeal
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and have found none. Accordingly, although we affirm the
convictions, we vacate the sentences, and remand for resentencing.
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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