UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4747
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JOHN WESLEY BLACKMON, JR.,
Defendant - Appellant.
No. 05-4850
UNITED STATES OF AMERICA,
Plaintiff - Appellant,
versus
JOHN WESLEY BLACKMON, JR.,
Defendant - Appellee.
Appeals from the United States District Court for the Western
District of North Carolina, at Bryson City. Lacy H. Thornburg,
District Judge. (CR-04-93)
Submitted: April 7, 2006 Decided: May 10, 2006
Before MOTZ, KING, and SHEDD, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
Randolph M. Lee, LAW OFFICES OF RANDOLPH M. LEE, Charlotte, North
Carolina, for Appellant/Cross-Appellee. Gretchen C. F. Shappert,
United States Attorney, Charlotte, North Carolina, Amy E. Ray,
Assistant United States Attorney, Asheville, North Carolina, for
Appellee/Cross-Appellant.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
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PER CURIAM:
John Wesley Blackmon, Jr., appeals his 200-month
imprisonment sentence imposed on his guilty plea to a one-count
indictment for conspiracy to possess with intent to distribute at
least 50 grams of cocaine base, in violation of 21 U.S.C. §§ 841,
846 (2000) (Appeal No. 05-4747). He does not challenge his
conviction. The Government filed a timely cross-appeal, which also
is currently pending (Appeal No. 05-4850).
Prior to Blackmon’s plea, the Government filed an
information pursuant to 21 U.S.C. § 851, noticing its intention to
rely on a prior felony conviction for sentencing purposes. During
his plea colloquy, Blackmon was advised, and stated that he
understood, that he faced a mandatory minimum term of imprisonment
of at least twenty years’ imprisonment if he had a prior felony
conviction.
The probation officer determined that Blackmon’s base
offense level was 36, pursuant to U.S. Sentencing Guidelines Manual
(“USSG”) § 2B1.1(a)(2) (2004), based on accountability for 1.47
kilograms of cocaine base. The probation officer added four levels
for role in the offense, pursuant to USSG § 3B1.1(a), and then
reduced three levels for acceptance of responsibility, pursuant to
USSG § 3E1.1(a), for a total offense level of 37. With a criminal
history category of V, the probation officer calculated Blackmon’s
guideline range to be 324 to 405 months’ imprisonment. Blackmon
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filed objections to the presentence report, which objections
included, inter alia, challenges to the calculation of the drug
quantity, both factually and on Sixth Amendment grounds, to the
four-level enhancement for his role in the offense, and to his
being subject to the enhanced statutory penalties, on the basis
that he never received the § 851 notice.
During sentencing, the district court overruled
Blackmon’s objection to the § 851 notice, after giving Blackmon the
opportunity to withdraw from his guilty plea. With regard to
Blackmon’s drug quantity and enhancement for role in the offense
objections, defense counsel admitted that the Government could
prove a quantity of 50 to 150 grams of cocaine base, but not the
nearly 1.5 kilograms recommended in the presentence report.
Blackmon’s argument was premised on United States v. Booker, 543
U.S. 220 (2005), and he asserted that the drug amount and role in
the offense enhancements were enhancing factors that still must be
found by the jury. The district court agreed with Blackmon,
stating that it was “of the opinion that [after Booker] it’s still
necessary for a jury to find enhancements in this case.” The
district court then sustained Blackmon’s objections to drug
quantity and role in the offense, finding that the drug quantity
attributable to Blackmon was between 50 and 150 grams of cocaine
base and that his offense level should not be increased based on
his leadership role in the offense. The district court applied the
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three-level reduction for acceptance of responsibility, and
determined that Blackmon’s offense level was 29, with an attendant
guideline range of 140 to 175 months. After upholding the validity
of the § 851 information, the district court concluded that the
applicable statutory mandatory minimum term of imprisonment was 240
months. The district court stated that it considered the factors
noted in 18 U.S.C.A. § 3553(a) (West 2000 & Supp. 2005), considered
the guidelines to be advisory, and further considered that, after
consulting the guidelines, he was to enter a reasonable sentence.
The district court then announced the sentence of 200 months’
imprisonment (below the statutory mandatory minimum), followed by
a ten-year term of supervised release.1
On appeal, Blackmon challenges the district court’s
determination that he was responsible for 50 to 150 grams of crack
cocaine and further contends that the district court’s statement of
reasons for the sentence it imposed was inadequate. The sole issue
raised by the Government in its cross-appeal is that the district
court erred in refusing to enhance Blackmon’s sentence based on
facts not found by the jury where the district court’s refusal to
apply such enhancement was based on the mistake of law that such
enhancement could not be applied notwithstanding the advisory
1
At the conclusion of the hearing, the district court repeated
its conclusion that it lacked the authority to enhance Blackmon’s
sentence based on the amount of drugs or his role in the
conspiracy.
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nature of the guidelines.2 Given our determination that this case
requires resentencing, as discussed below, the issues raised by
Blackmon on appeal are moot.
Whether the district court properly applied the Sixth
Amendment right to a jury trial to require a jury’s finding of fact
to support a sentencing enhancement is a question of law that this
court reviews de novo. United States v. Mackins, 315 F.3d 399, 405
(4th Cir. 2003). After the Supreme Court’s decision in Booker, a
sentencing court is no longer bound by the range prescribed by the
sentencing guidelines. United States v. Green, 436 F.3d 449, 455-
56 (4th Cir. 2006); United States v. Hughes, 401 F.3d 540, 546 (4th
Cir. 2005). In determining a sentence post-Booker, however,
sentencing courts are still required to calculate and consider the
guideline range prescribed thereby as well as the factors set forth
in 18 U.S.C.A. § 3553(a). Id. As we stated in Hughes, this court
will affirm a post-Booker sentence if it is both reasonable and
within the statutorily prescribed range. Id. at 546-47. Further,
this court has stated that, “while we believe that the appropriate
circumstances for imposing a sentence outside the guideline range
will depend on the facts of individual cases, we have no reason to
doubt that most sentences will continue to fall within the
2
In response, Blackmon contends that even if the district
court was incorrect about its fact-finding role in the wake of
Booker, there was no cognizable error because the district court
imposed a sentence by treating the guidelines as advisory and by
invoking its powers under § 3553(a).
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applicable guideline range.” United States v. White, 405 F.3d 208,
219 (4th Cir.), cert. denied, 126 S. Ct. 668 (2005).
In sentencing defendants after Booker, district courts
should apply a preponderance of the evidence standard, taking into
account that the resulting guideline range is advisory only:
Booker does not in the end move any decision from judge
to jury, or change the burden of persuasion. The
remedial portion of Booker held that decisions about
sentencing factors will continue to be made by judges, on
the preponderance of the evidence, an approach that
comports with the [S]ixth [A]mendment so long as the
guideline system has some flexibility in application. As
a practical matter, then, [a defendant’s] sentence[]
would be determined in the same way if [he was] sentenced
today; the only change would be the degree of flexibility
judges would enjoy in applying the guideline system.
United States v. Morris, 429 F.3d 65, 72 (4th Cir. 2005) (internal
quotation marks and citation omitted); see also United States v.
Dalton, 409 F.3d 1247, 1252 (10th Cir. 2005); United States v.
Mares, 402 F.3d 511, 519 (5th Cir.), cert. denied, 126 S. Ct. 43
(2005).
Here, the district court plainly stated on the record
that only the jury had the authority to find enhancements in this
case. It sustained Blackmon’s objections to the enhancements on
the basis that it did not have the authority to enhance Blackmon’s
sentence based either on a drug quantity greater than that to which
Blackmon admitted or on his leadership role in the conspiracy,
because to do so would violate Booker and Blackmon’s Sixth
Amendment rights. In so doing, we find that the district court
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erred as a matter of law. Moreover, because the guideline range
was not properly calculated, Blackmon’s sentence was not
reasonable. See Green, 436 F.3d at 456.
Accordingly, we vacate Blackmon’s sentence and remand for
resentencing in compliance with Booker and its progeny.3 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.
VACATED AND REMANDED
3
In resentencing Blackmon, the district court should follow
this court’s directive in Green, and must:
(1) properly calculate the sentence range recommended by
the Sentencing Guidelines; (2) determine whether a
sentence within that range and within statutory limits
serves the factors set forth in § 3553(a) and, if not,
select a sentence that does serve those factors; (3)
implement mandatory statutory limitations; and (4)
articulate the reasons for selecting the particular
sentence, especially explaining why a sentence outside of
the Sentencing Guideline range better serves the relevant
sentencing purposes set forth in § 3553(a).
Green, 436 F.3d at 455-56 (footnote omitted). A sentence not
imposed within the properly calculated range must be based on the
factors listed under § 3553(a), which include the nature and
circumstances of the offense and the history and characteristics of
the defendant, the need to reflect the seriousness of the offense,
to promote respect for the law, to provide just punishment, to
afford adequate deterrence, to protect the public from the
defendant’s future crimes, to provide the defendant with needed
training, medical care and other correctional treatment. 18
U.S.C.A. § 3553(a). Id. at 456.
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