UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 03-4307
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
WALTER ANTHONY WEST,
Defendant - Appellant.
On Remand from the Supreme Court of the United States.
(S. Ct. No. 04-6135)
Submitted: February 15, 2006 Decided: May 4, 2006
Before MICHAEL, TRAXLER, and KING, Circuit Judges.
Affirmed in part; vacated and remanded in part by unpublished per
curiam opinion.
James Wyda, Federal Public Defender, Beth M. Farber, Assistant
Federal Public Defender, Greenbelt, Maryland, for Appellant.
Gretchen C. F. Shappert, United States Attorney, Thomas R. Ascik,
Assistant United States Attorney, Asheville, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
This case is before the court on remand from the United
States Supreme Court. We previously affirmed Walter Anthony West’s
conviction and sentence for conspiracy to manufacture and
distribute methamphetamine, in violation of 21 U.S.C. §§ 841, 846
(2000). United States v. West, No. 03-4307 (4th Cir. June 3, 2004)
(unpublished). The Supreme Court vacated our decision and remanded
West’s case for further consideration in light of United States v.
Booker, 125 S. Ct. 738 (2005).
A Sixth Amendment error occurs when a district court
imposes a sentence greater than the maximum permitted based on
facts found by a jury or admitted by the defendant. Booker, 125 S.
Ct. at 756. Because West did not raise a Sixth Amendment challenge
or object to the mandatory application of the Sentencing Guidelines
in the district court, our review is for plain error. United
States v. Hughes, 401 F.3d 540, 547 (4th Cir. 2005).
The jury’s verdict supports a factual finding that West
was responsible for at least fifty grams of a mixture containing
methamphetamine.1 This factual finding corresponds to a base
1
Although the district court concluded that West was
responsible for “pure meth—actual meth,” the jury verdict form
specifies “more than 50 grams of a mixture or substance containing
a detectable amount of methamphetamine.” (J.A. at 795, 800). The
jury’s verdict thus supports a base offense level of 26 pursuant to
USSG § 2D1.1(c)(7), rather than a base offense level of 32 under
USSG § 2D1.1(c)(4) (for offenses involving at least 50 but no more
than 150 grams of methamphetamene (actual)).
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offense level of twenty-six. See U.S. Sentencing Guidelines Manual
§ 2D1.1(c)(7) (providing offense level for between 50 and 200 grams
of a mixture containing methamphetamine). When combined with
West’s criminal history category of II, this results in a
sentencing range of seventy to eighty-seven months’ imprisonment.
USSG Ch. 5, Pt. A, table. The district court imposed a sentence of
240 months, which exceeds this range. Because this amounts to
error that affects West’s substantial rights, we conclude it is
plainly erroneous.2 See Hughes, 401 F.3d at 547-48.
Accordingly, we vacate the sentence imposed by the
district court and grant West’s motion to remand for resentencing
in accordance with Booker. 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.” 125 S. Ct. at 767. 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. The court should
consider this sentencing range along with the other factors
described in 18 U.S.C. § 3553(a) (2000), and then impose a
sentence. Id. If that sentence falls outside the Guidelines
range, the court should explain its reasons for imposing a non-
2
Just as we noted in Hughes, 401 F.3d at 545 n.4, “[w]e of
course offer no criticism of the district judge, who followed the
law and procedure in effect at the time” of West’s sentencing.
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Guidelines sentence as required by 18 U.S.C. § 3553(c)(2) (2000).
Id. The sentence must be “within the statutorily prescribed range
and . . . reasonable.” Id. at 546-47. We affirm West’s
convictions for the reasons stated in our opinion of June 3, 2004.
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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