UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4842
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
SCOTTIE LEE CLAY,
Defendant - Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Charleston. David A. Faber, Chief
District Judge. (CR-04-67)
Submitted: January 27, 2006 Decided: March 21, 2006
Before TRAXLER and GREGORY, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed in part, vacated in part, and remanded by unpublished per
curiam opinion.
David Schles, STOWERS & ASSOCIATES, Charleston, West Virginia, for
Appellant. Charles T. Miller, Acting United States Attorney,
Steven I. Loew, Assistant United States Attorney, Charleston, West
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Scottie Lee Clay appeals his sentence for possession of
stolen firearms in violation of 18 U.S.C. §§ 922(j) and 924(a)(2).1
We affirm in part, vacate in part, and remand for resentencing.
Clay contends that the district court used judicially
found facts to enhance his sentence in violation of United
States v. Booker, 543 U.S. 220 (2005). Clay admitted to possessing
four stolen firearms, but the district court attributed twenty-
seven stolen firearms to him, resulting in a six-level increase in
Clay’s offense level. This enhanced Clay’s sentence based on facts
not found by the jury beyond a reasonable doubt or admitted by
Clay. However, there is no Sixth Amendment error where a
defendant’s sentence does not exceed the maximum authorized by the
facts he admitted. United States v. Evans, 416 F.3d 298, 300 (4th
Cir. 2005). The four guns Clay admitted to support a two offense
level enhancement under U.S. Sentencing Guidelines Manual
§ 2K2.1(b)(1)(A) (2005), yielding a total offense level of
fourteen.2 With Clay’s category III criminal history, Clay’s
sentencing range would have been twenty-one to twenty-seven months.
1
Clay does not appeal his conviction.
2
As in Evans, 416 F.3d at 300 n.4 (4th Cir. 2005), for
purposes of determining whether a Sixth Amendment violation
occurred, the sentence imposed on Clay is compared against the
guideline range he should have received, based on a jury verdict or
admitted conduct, excluding the adjustment for acceptance of
responsibility.
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Clay’s sentence of twenty-seven months falls within that range. As
Clay’s sentence did not exceed the maximum authorized by the facts
of the offense to which he pled guilty, no Sixth Amendment
violation occurred.
Clay also contends that the district court’s “statutory
Booker error”--treating the sentencing guidelines as mandatory--
requires resentencing. See United States v. Rodriguez, 433 F.3d
411, 414 (4th Cir. 2006) (“[A] court commits statutory error [under
Booker] if it treats the Guidelines as mandatory, rather than as
advisory.”). Clay preserved this issue by objecting under Blakely
v. Washington, 542 U.S. 296 (2004), and our review thus proceeds
under a harmless error analysis. See Rodriguez, 433 F.3d at 415-
16. The government bears the burden in harmless error review of
showing beyond a reasonable doubt that the error did not affect the
defendant’s substantial rights. Because the district court gave no
indication of the sentence it would have imposed under a system of
advisory Guidelines, we conclude that the government has failed to
establish that the error in treating the Guidelines as mandatory
was harmless. See id. at 416.
Accordingly, we affirm Clay’s conviction, vacate his
sentence, and remand for resentencing in accordance with Booker.
We dispense with oral argument because the facts and legal
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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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