UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 03-4896
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
RICK BARTON, SR.,
Defendant - Appellant.
On Remand from the Supreme Court of the United States.
(S. Ct. No. 04-9022)
Submitted: January 27, 2006 Decided: May 3, 2006
Before WILLIAMS, SHEDD, and DUNCAN, Circuit Judges.
Affirmed in part, vacated in part, and remanded by unpublished per
curiam opinion.
A. Benton Chafin, Jr., CHAFIN LAW FIRM, P.C., Lebanon, Virginia,
for Appellant. John L. Brownlee, United States Attorney, Jean B.
Hudson, Assistant United States Attorney, Charlottesville,
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
This case is before us on remand from the United States
Supreme Court for further consideration in light of United
States v. Booker, 125 S. Ct. 738 (2005). In our prior opinion, we
affirmed Barton’s convictions on six counts of conspiracy, drug
distribution, and firearms offenses, and the resulting 1170-month
sentence. United States v. Barton, 116 F. App’x 460 (4th Cir.
2004), vacated, 126 S. Ct. 39 (2005). After reviewing Barton’s
appeal in light of Booker, we affirm his convictions for the
reasons stated in our prior opinion, vacate his sentence, and
remand for resentencing.
Barton does not challenge on Sixth Amendment grounds his
sentences on the four firearms counts,1 and we find no Booker error
in those statutorily-mandated sentences. See 18 U.S.C.
§ 924(c)(1)(C)(i) (2000). However, Barton asserts, and the
Government concedes, that his Sixth Amendment rights were violated
because the district court imposed a four-level enhancement for his
role as a leader or organizer in the offense, pursuant to U.S.
Sentencing Guidelines Manual (USSG) § 3B1.1 (2002), based on facts
not found by a jury or admitted by Barton. Because Barton did not
raise the Sixth Amendment issue in the district court, we review
1
Barton does reassert his argument that the district court
erred in allowing his conviction for four § 924(c) violations when
he was charged with only one predicate drug offense. We reject
this argument for the reasons stated in our original opinion.
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for plain error. See United States v. Hughes, 401 F.3d 540, 547
(4th Cir. 2005). To demonstrate plain error, Barton must establish
that error occurred, that it was plain, and that it affected his
substantial rights. Id. at 547-48. If a defendant satisfies these
requirements, this 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.” Id. at 555 (internal
quotation marks and citation omitted).
In Booker, the Supreme Court held that the mandatory
manner in which the 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. 125 S.
Ct. 746, 750 (Stevens, J., opinion of the Court). The Court
remedied the constitutional violation by making the Guidelines
advisory through the removal of two statutory provisions that had
rendered them mandatory. 125 S. Ct. at 746 (Stevens, J., opinion
of the Court); 125 S. Ct. at 756-67 (Breyer, J., opinion of the
Court).
Here, the district court sentenced Barton under the
mandatory federal Sentencing Guidelines by applying an enhancement
for Barton’s role in the offense based on factual findings made by
the court, yielding a sentencing range of 210-262 months for the
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conspiracy and distribution convictions. Excluding this
enhancement, Barton’s total offense level on these counts would
have been thirty. See USSG § 2D1.1(c)(5). With a criminal history
category of IV, the resulting guideline range would be 135 to 168
months of imprisonment. USSG Ch. 5, Pt. A (Sentencing Table). The
210-month sentence Barton received on these counts is longer than
the maximum of 168 months the district court could have imposed
based solely on facts found by the jury. See Hughes, 401 F.3d at
548. We conclude that the district court’s plain error in
sentencing Barton based on facts found by the court and not the
jury affects his substantial rights and warrants correction.2
Accordingly, we affirm Barton’s convictions, but vacate
his sentence and remand 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.’” United States v. Gray, 405
F.3d 227, 244 n.10 (4th Cir. 2005), cert. denied 126 S. Ct. 275
(2005) (quoting Booker, 125 S. Ct. at 767). In determining the
appropriate sentence on remand,
the district court should first determine the appropriate
sentencing range under the Guidelines, making all factual
findings appropriate for that determination. Hughes, 401
F.3d at 546. The court should consider this sentencing
2
Just as we noted in Hughes, “[w]e of course offer no
criticism of the district judge, who followed the law and procedure
in effect at the time” of Barton’s sentencing. 401 F.3d at 545
n.4.
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range along with the other factors described in 18 U.S.C.
§ 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. § 3553(c)(2). Hughes, 401 F.3d at 546. The
sentence must be “within the statutorily prescribed
range and . . . reasonable.” Id. at 547.
Id.
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 IN PART,
AND REMANDED
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