UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4338
UNITED STATES OF AMERICA,
Plaintiff - Appellant,
versus
BOBBY WILLIAMS, JR.,
Defendant - Appellee.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Malcolm J. Howard,
District Judge. (CR-04-93)
Submitted: February 27, 2006 Decided: April 21, 2006
Before LUTTIG, WILLIAMS, and TRAXLER, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
Frank D. Whitney, United States Attorney, Anne M. Hayes, Assistant
United States Attorney, Christine Witcover Dean, Assistant United
States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh,
North Carolina, for Appellant. Thomas P. McNamara, Federal Public
Defender, Stephen C. Gordon, Assistant Federal Public Defender,
OFFICE OF THE FEDERAL PUBLIC DEFENDER, Raleigh, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
The United States appeals the sentence imposed on appellee
Bobby Williams, Jr., challenging both the district court’s refusal
to consider the applicability of U.S.S.G. § 2K2.1(b)(5) when
calculating the Guidelines range and its decision to vary downward
from the Guidelines range so calculated. For the reasons that
follow, the sentence is vacated and the case remanded for
resentencing consistent with United States v. Booker, 125 S. Ct.
738 (2005).
I.
Williams originally was charged in two counts of a four-count
indictment with distributing heroin and possessing heroin with the
intent to distribute it, in violation of 21 U.S.C. § 841(a)(1)
(Count 3), and with possessing a firearm in furtherance of that
drug trafficking offense, in violation of 18 U.S.C. § 924(c) (Count
4). J.A. 16. The jury trial on those charges ended in a mistrial
after the jury deadlocked. J.A. 19-20. Williams subsequently
waived his right to indictment, J.A. 21, and pled guilty to a one-
count criminal information charging him only with aiding and
abetting the possession of a firearm by a felon (Williams’ original
co-defendant), in violation of 18 U.S.C. §§ 2, 922(g)(1), 924, J.A.
22, 41-42.
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At sentencing on the aiding and abetting conviction, the
government, relying on the conduct alleged in Count 4 of the
original indictment, sought a four point enhancement because
Williams had “used or possessed [a] firearm or ammunition in
connection with another felony offense.” U.S.S.G. § 2K2.1(b)(5).
The district court refused to consider whether the enhancement was
warranted because it believed that Apprendi v. New Jersey, 530 U.S.
466 (2000), and United States v. Booker, 125 S. Ct. 738 (2005),
prohibited such judicial factfinding. See J.A. 52-57. After
calculating the Guideline ranges without the section 2K2.1(b)(5)
enhancement, the district court then additionally varied downward
based on the section 3553(a) factors and Booker. J.A. 57, 64-65.
The government appeals both the failure to consider the section
2K2.1(b)(5) enhancement and the downward variance.
II.
The district court erred in concluding that Apprendi and
Booker prohibited it from considering whether the section
2k2.1(b)(5) enhancement was warranted. We have held that it is
consistent with, and indeed required by, Booker that a sentencing
court first calculate the correct Guidelines range by making the
appropriate findings of fact. See United States v. Hughes, 401
F.3d 540, 546 (4th Cir. 2005). Post-Booker, making factual
findings about uncharged conduct for purposes of the Guidelines
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calculation of a separate crime does not violate Apprendi because
the judicial factfinding conducted is no longer necessary for the
imposition of the sentence: Now that the Guidelines are only
advisory, the maximum possible sentence, even without judicial
factfinding, is the actual statutory maximum. See id. at 545-46.
Because the district court incorrectly applied the Guidelines by
declining to consider whether a section 2K2.1(b)(5) enhancement was
warranted, the case must be remanded pursuant to 18 U.S.C. §
3742(f)(1). United States v. Green, 436 F.3d 449, 457 (4th Cir.
2006).
Williams does not seriously contend that the district court
did not err in refusing to consider the section 2K2.1(b)(5)
enhancement; rather, he basically argues that the error was
harmless either because the district court would not have found by
a preponderance of the evidence that an enhancement based on the
uncharged conduct was factually warranted or because it would have
imposed the same sentence even if the enhancement were warranted.
Williams’ argument is meritless. He bases his harmless error claim
entirely on two facts: first, that a previous jury had deadlocked
on whether he was guilty of the uncharged conduct beyond a
reasonable doubt; and second, that the district court appears to
have rejected the Government’s argument that a downward variance
was inappropriate in light of the uncharged conduct, see J.A. 64-
65. Obviously, neither of these facts proves that the district
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court would not have found by a preponderance of the evidence that
Williams was guilty of the uncharged conduct. And given that the
reasonableness of a downward variance depends partly on the extent
of the variance from a properly calculated Guidelines range, see
United States v. Moreland, 437 F.3d 424, 433-34 (4th Cir. 2006),
the district court might well have imposed a higher sentence if it
did believe the enhancement was required. Thus, Williams cannot
meet his burden to prove harmless error because this court lacks
“fair assurance, after pondering all that happened without
stripping the erroneous action from the whole, that the judgment
was not substantially swayed by the error.” Kotteakos v. United
States, 328 U.S. 750, 765 (1946).
CONCLUSION
The sentence is vacated and the case remanded for
resentencing.*
VACATED AND REMANDED
*
Because the sentence must be vacated, the Government’s
challenge to the reasonableness of the downward variance is moot.
Nor will addressing the issue now necessarily aid the district
court at resentencing, because the reasonableness of a downward
variance depends partly on the extent of the variance from a
properly calculated Guidelines range. See Moreland, 437 F.3d at
433-34.
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