United States v. Stokes

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 03-4720

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

CECIL LAMONT STOKES,

Defendant - Appellant.

On Remand from the Supreme Court of the United States.
(S. Ct. No. 04-6554)

Submitted: February 10, 2006 Decided: May 4, 2006

Before WIDENER, WILKINSON, and MICHAEL, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Brian Michael Aus, Durham, North Carolina, for Appellant. Angela
Hewlett Miller, Lawrence Patrick Auld, 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Unpublished opinions are not binding precedent in this circuit.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).
PER CURIAM:

This case is before the court on remand from the United

States Supreme Court. We previously affirmed Cecil Lamont Stokes’

conviction and sentence. United States v. Stokes, No. 03-4720 (4th

Cir. Mar. 17, 2004) (unpublished). The Supreme Court vacated our

decision and remanded Stokes’ case to us for further consideration

in light of United States v. Booker, 543 U.S. 220, 125 S. Ct. 738

(2005).

In Stokes’ supplemental brief, filed at this court’s

direction after the Supreme Court’s remand, he contends that he is

entitled to resentencing in light of Booker because his sentence

was enhanced based on facts not found by the jury and the district

court considered the guidelines as mandatory. Specifically, he

argues that his offense level was increased based on judicial fact-

finding with respect to the two-level enhancement for abuse of a

position of public trust.

This court has identified two types of Booker error: a

violation of the Sixth Amendment, and a failure to treat the

sentencing guidelines as advisory. United States v. Hughes, 401

F.3d 540, 552 (4th Cir. 2005). A Sixth Amendment error occurs when

the 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 Stokes did not

raise a Sixth Amendment challenge or object to the mandatory

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application of the guidelines in the district court, review is for

plain error. Hughes, 401 F.3d at 547. To demonstrate plain error,

an appellant must establish that an error occurred, that it was

plain, and that it affected his substantial rights. United

States v. Olano, 507 U.S. 725, 731-32 (1993); Hughes, 401 F.3d at

547-48. If an appellant meets these requirements, the court’s

“discretion is appropriately exercised only when failure to do so

would result in a miscarriage of justice, such as when the

defendant is actually innocent or the error seriously affects the

fairness, integrity or public reputation of judicial proceedings.”

Hughes, 401 F.3d at 555 (internal quotation marks and citation

omitted). While the mandatory application of the guidelines

constitutes plain error, United States v. White, 405 F.3d 208, 217

(4th Cir.), cert. denied, 126 S. Ct. 668 (2005), a defendant who

seeks resentencing on this ground must show actual prejudice, i.e.,

a “nonspeculative basis for concluding that the treatment of the

guidelines as mandatory ‘affect[ed] the district court’s selection

of the sentence imposed.’” Id. at 223 (quoting Williams v. United

States, 503 U.S. 193, 203 (1992)).

For purposes of determining Booker error, this court

considers the guideline range based on the facts the defendant

admitted before any adjustment for acceptance of responsibility.

United States v. Evans, 416 F.3d 298, 300 n.4 (4th Cir. 2005).

Removing the abuse of a position of public trust enhancement, which

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had been added, reduces Stokes’ pre-acceptance-of-responsibility

offense level by two levels from 26 to 24, which combined with

criminal history category IV would make the guideline range 77-96

months for the interference with commerce count. Because Stokes’

sentence was within that range, he cannot show plain error.

Moreover, nothing in the sentencing transcript or elsewhere in the

record suggests that the district court would have given Stokes a

lower sentence if the guidelines were not mandatory. Therefore,

Stokes has not established plain error that warrants resentencing

under White, 405 F.3d at 223.

Accordingly, we affirm Stokes’ sentence after our

reconsideration in light of Booker. In addition, we reinstate our

March 17, 2004 opinion affirming his conviction. 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

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