UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4457
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
DARRELL ANTONIO BURRELL, a/k/a Silly Rabbit,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. William M. Nickerson, Senior District
Judge. (CR-98-210-WMN)
Submitted: August 31, 2005 Decided: April 25, 2006
Before TRAXLER, GREGORY, and SHEDD, Circuit Judges.
Affirmed in part; vacated and remanded in part by unpublished per
curiam opinion.
Michael D. Montemarano, MICHAEL D. MONTEMARANO, P.A., Elkridge,
Maryland, for Appellant. Thomas M. DiBiagio, United States
Attorney, Jamie M. Bennett, Assistant United States Attorney,
Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Darrell Antonio Burrell appeals from the judgment of the
district court resentencing him to life imprisonment on a
conviction for conspiracy to distribute and possess with the intent
to distribute cocaine, in violation of 21 U.S.C. §§ 841, 846
(2000). Although we affirm Burrell’s conviction, we vacate his
sentence and grant his motion to remand for resentencing in light
of United States v. Booker, 543 U.S. 220 (2005).
Burrell first asserts that his conspiracy conviction
should be set aside on the basis of the district court’s removal of
one of the two attorneys appointed to defend him on capital murder
charges. He claims this action infected his entire trial with
structural error. We considered and rejected this claim in
Burrell’s prior appeal. See United States v. Ray, No. 00-4409(L),
(4th Cir. Mar. 19, 2003) (unpublished). Accordingly, we decline to
reconsider this issue, and we affirm Burrell’s conviction. See
United States v. Bell, 5 F.3d 64, 66 (4th Cir. 1993).
Burrell also claims that the district court’s imposition
of sentence violated his Sixth Amendment right to trial by a jury.
Burrell preserved this issue in the district court by objecting
pursuant to Blakely v. Washington, 124 S. Ct. 2531 (2004). See
United States v. Rodriguez, 433 F.3d 411, 415 (4th Cir. 2006).
Because Burrell preserved the issue, we review the district court’s
imposition of sentence de novo, and the Government bears the burden
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of demonstrating that any error in the sentence is harmless. See
id.; United States v. Mackins, 315 F.3d 399, 405 (4th Cir. 2003).
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.
See Booker, 543 U.S. at 233-34 (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 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 258-65 (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)
(West 2000 & Supp. 2005), and impose a sentence. If the district
court imposes a sentence outside the guideline range, it 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
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Amendment. Id. at 547 (citing Booker, 543 U.S. at 267-68 (Breyer,
J., opinion of the Court)).
On the prior remand from this court, the district court
applied the murder cross-reference pursuant to U.S. Sentencing
Guidelines Manual § 2D1.1 (2000), and imposed a life sentence. The
court also noted it would have alternatively applied the career
offender enhancement pursuant to USSG § 4B1.1:
I will say, if it has any import, that if I was wrong
with respect to the law, that 2A1.1 [the murder cross
reference] is not appropriate and Mr. Burrell is more
appropriately sentenced, as Mr. Montemarano has argued,
under the drug charge, that is, his career offender
status, he would come out at a 37, and because of the
murders that occurred and the clear evidence of Mr.
Burrell’s proclivities toward violence and his danger to
the community, likelihood of recidivism, et cetera, I
would sentence him to life, but that’s not where we are.
(J.A. at 121). The facts that were used to enhance Burrell’s
sentence pursuant to the murder cross-reference were neither found
by the jury nor admitted by Burrell. Accordingly, in light of
Booker, Burrell’s sentence was erroneous.*
We likewise conclude that the error was not harmless.
Although the district court stated an alternative basis for a life
sentence, the court provided the alternative in the event that we
disagreed with the application of the murder cross-reference. The
court did not make clear that it would have given the same sentence
*
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 Burrell’s sentencing.
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if the guidelines were advisory rather than mandatory, and we
decline to speculate as to whether the court would have imposed the
same sentence under the now-advisory guidelines. Because we cannot
conclude from the record before us that the district court would
necessarily have applied the same sentence if it had considered the
guidelines to be advisory, we must vacate Burrell’s sentence and
remand the case for resentencing.
Although the sentencing guidelines are no longer
mandatory, Booker makes clear that a sentencing court must still
“consult [the] Guidelines and take them into account when
sentencing.” 543 U.S. at 264. On remand, the district court
should first determine the appropriate sentencing range under the
guidelines, making all factual findings appropriate for that
determination. See Hughes, 401 F.3d at 546 (applying Booker on
plain error review). The court should consider this sentencing
range along with the other factors described in 18 U.S.C.A.
§ 3553(a), and then impose a sentence. Id. 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) (West
2000). Id. The sentence must be “within the statutorily
prescribed range and . . . reasonable.” Id. at 546-47.
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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 AND REMANDED IN PART
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