Filed: May 19, 2006
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 02-4844
(CR-01-10023)
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
AGNES HOLBROOK,
Defendant - Appellant.
O R D E R
The court amends its opinion filed May 4, 2006, as follows:
On page 1, attorney information section -- “Anthony E.
Collins, COLLINS & COLLINS, Wise, Virginia” is deleted and replaced
with “Sol Z. Rosen, Washington, D.C.” as counsel for Appellant.
For the Court - By Direction
/s/ Patricia S. Connor
Clerk
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 02-4844
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
AGNES HOLBROOK,
Defendant - Appellant.
On Remand from the Supreme Court of the United States.
(S. Ct. No. 04-8323)
Submitted: February 22, 2006 Decided: May 4, 2006
Before WILLIAMS, KING, and DUNCAN, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
Sol Z. Rosen, Washington, D.C., for Appellant. John L. Brownlee,
United States Attorney, Eric M. Hurt, Assistant United States
Attorney, Abingdon, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Agnes Holbrook was convicted of possession of a firearm
by a person convicted of a misdemeanor crime of domestic violence,
in violation of 18 U.S.C. § 922(g)(9) (2000) (Count One), and
making false statements to a firearms dealer in connection with the
purchase of a firearm, in violation of 18 U.S.C. § 922(g)(6) (2000)
(Count Two). The district court sentenced Holbrook to 120 months
in prison on Count One and a consecutive ninety months in prison on
Count Two. This court upheld Holbrook’s convictions and sentences
on appeal. United States v. Holbrook, 368 F.3d 415 (4th Cir.
2004), vacated, 125 S. Ct. 2934 (2005). The Supreme Court
subsequently granted Holbrook’s petition for certiorari, vacated
this court’s judgment, and remanded for further consideration in
light of United States v. Booker, 543 U.S. 220 (2005).
The district court imposed Holbrook’s sentence before
Booker and its predecessor, Blakely v. Washington, 542 U.S. 296
(2004), and she did not raise objections to her sentence based on
the mandatory nature of the Federal Sentencing Guidelines or the
district court’s application of sentencing enhancements based on
facts not admitted by her or found by the jury beyond a reasonable
doubt. Therefore, we review her sentence for plain error. United
States v. Hughes, 401 F.3d 540, 547 (4th Cir. 2005).
The district court applied the second degree murder
cross-reference and increased Holbrook’s offense level for
obstruction of justice. Without judicially-determined sentencing
enhancements, Holbrook’s offense level would have been fourteen.
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Because she was in criminal history category I, her guideline range
would have been fifteen to twenty-one months in prison. The 210-
month sentence imposed by the district court under a mandatory
guideline scheme was therefore longer than the sentence the
district court could have imposed without violating the Sixth
Amendment. We therefore conclude that plain error affecting
Holbrook’s substantial rights occurred in her sentencing. Id. at
550-51.*
Accordingly, we vacate Holbrook’s sentence and remand for
resentencing. Although the Sentencing Guidelines are no longer
mandatory, Booker makes clear that a sentencing court still must
“consult [the] Guidelines and take them into account when
sentencing.” Booker, 543 U.S. at 244-45. 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 range along with the other factors described in 18
U.S.C.A. § 3553(a) (West 2000 & Supp. 2005), and then impose a
sentence. If that sentence falls outside the guideline range, the
court should explain the reasons for the departure as required by
18 U.S.C.A. § 3553(c)(2). Id. The sentence must be “within the
statutorily prescribed range and . . . reasonable.” Id.
*
As we noted in Hughes, “[w]e of course offer no criticism of
the district court judge who followed the law and procedure in
effect at the time” of Holbrook’s sentencing. 401 F.3d at 545 n.4.
See generally Johnson v. United States, 520 U.S. 461, 469 (1997)
(stating that an error is “plain” if “the law at the time of trial
was settled and clearly contrary to the law at the time of
appeal”).
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We deny Holbrook’s motion for 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
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