UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4066
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
GRAHAM MCDOUGLAS REAMS, JR.,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. James A. Beaty, Jr.,
District Judge. (CR-04-301)
Submitted: April 12, 2006 Decided: May 1, 2006
Before MOTZ, KING, and DUNCAN, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
Thomas N. Cochran, Assistant Federal Public Defender, Greensboro,
North Carolina, for Appellant. Michael Augustus DeFranco,
Assistant United States Attorney, Greensboro, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Graham McDouglas Reams, Jr., pled guilty to possession of
a firearm by a convicted felon, in violation of 18 U.S.C.
§ 922(g)(1) (2000). He was sentenced to seventy-four months in
prison. He now appeals, arguing that his sentence violates the
Sixth Amendment under United States v. Booker, 543 U.S. 220 (2005).
We vacate the sentence and remand for resentencing.
Prior to Reams’ arraignment, the parties filed somewhat
conflicting documents with the court. In Reams’ “Acceptance of
Responsibility,” he admitted to being a convicted felon and to
having a pistol with him when his vehicle was stopped on
February 29, 2004. Reams stated that he made no other admissions
regarding the offense. According to a “Factual Basis” filed by the
United States, Reams was arrested following a traffic stop on
February 29. The arresting officer detected a strong smell of
marijuana in Reams’ vehicle and noticed a plastic sandwich bag
inside the driver’s side door handle. The officer retrieved that
bag and a second bag, each of which appeared to the officer to
contain crack cocaine. Reams was arrested. Incident to the
arrest, the officer recovered a handgun from Reams’ person. Reams
indicated to officers that the bags should contain two and one-half
grams of crack. Only attorneys for the Government signed the
Factual Basis.
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The court accepted Reams’ guilty plea. Because Reams
possessed the firearm in connection with the commission of another
offense, the probation officer applied the cross reference set
forth at U.S. Sentencing Guidelines § 2K2.1(c)(1) (2003). The
probation officer determined that the amount of crack constituting
relevant conduct was six grams--the 2.5 grams referenced in the
Factual Basis and another 3.5 grams discovered on Reams’ person
during a March 29, 2004 traffic stop.1 The base offense level was
26, see USSG § 2D1.1(c)(7). Two levels were added because Reams
possessed a firearm in connection with the offense, see USSG
§ 2D1.1(b)(1), for an adjusted offense level of 28. Three levels
were subtracted for acceptance of responsibility, see USSG
§ 3E1.1(b). His total offense level was 25. Reams’ criminal
history category was III. His guideline range therefore was 70-87
months. The court sentenced Reams to seventy-four months in
prison.
Reams argues that his sentence violates the Sixth
Amendment under United States v. Booker, 543 U.S. 220 (2005). He
contends that the district court erroneously applied the cross
reference based on the fact that he had possessed crack. Reams
1
Count Two of the indictment charged Reams with being a felon
in possession of a firearm March 29, 2004. According to the
presentence report, officers discovered Reams in possession of a
firearm and 3.5 grams of crack on that date. Count Two was
dismissed as part of the plea agreement, but the probation officer
included the weight of the crack from both February 29 and March 29
when determining relevant conduct.
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states that this fact was neither charged in the indictment nor
admitted by him. The United States agrees that there was a Booker
error and that we must vacate Reams’ sentence and remand for
resentencing. Because Reams preserved this issue, our review is de
novo. See United States v. Mackins, 315 F.3d 399, 405 (4th Cir.
2003).
The transcript of the guilty plea proceeding has not been
made part of the record on appeal. Assuming that Reams correctly
states that he has never admitted possessing crack with the
firearm, the cross reference should not have been applied. Without
the enhancement, Reams’ adjusted offense level would have been 14,
and his guideline range would have been 21-27 months in prison.
Because his seventy-four-month sentence exceeds the maximum penalty
authorized by the admitted facts, there was a Sixth Amendment
violation requiring resentencing. See United States v. Evans, 416
F.3d 298, 300 (4th Cir. 2005).2
We accordingly vacate the sentence and remand for
resentencing. We dispense with oral argument because the facts and
2
If Reams agreed at the guilty plea proceeding that he
possessed 2.5 grams of crack in connection with the firearm
offense, as the Government states in the Factual Basis, and the
cross reference applied, resentencing also would be required. His
base offense level in that case would be 20, see USSG
§ 2D1.1(c)(10), and two levels would be added for possession of a
firearm, see USSG § 2D1.1(b)(1), for an adjusted offense level of
22. The guideline range for offense level 22, criminal history
category III, is 51-63 months. Under Evans, Reams’ seventy-four-
month sentence violates the Sixth Amendment, and resentencing would
be required.
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legal contentions are adequately presented in the materials before
the court and argument would not aid the decisional process.
VACATED AND REMANDED
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