UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4491
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
DARYL WILKES, a/k/a D,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Rebecca Beach Smith, District
Judge. (CR-03-161)
Submitted: April 24, 2006 Decided: May 26, 2006
Before TRAXLER, GREGORY, and DUNCAN, Circuit Judges.
Affirmed in part, vacated in part, and remanded by unpublished per
curiam opinion.
Andrew A. Protogyrou, PROTOGYROU & RIGNEY, P.L.C., Norfolk,
Virginia, for Appellant. Paul J. McNulty, United States Attorney,
William D. Muhr, Assistant United States Attorney, Norfolk,
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Daryl Wilkes was convicted by a jury of conspiracy to
possess with intent to distribute and to distribute cocaine base
and cocaine, twenty counts of distributing cocaine base, nine
counts of distributing cocaine, three counts of possession of a
firearm in furtherance of a drug trafficking crime, two counts of
possession with intent to distribute cocaine, and one count of
possession with intent to distribute cocaine base. Wilkes was
sentenced on June 16, 2004, approximately one week prior to the
Supreme Court’s decision in Blakely v. Washington, 542 U.S. 296
(2004). He received a 952-month sentence, consisting of 292 months
on the drug convictions and a consecutive 660 months on the firearm
convictions. On appeal, Wilkes challenges his sentence under
United States v. Booker, 543 U.S. 220 (2005), arguing that the
district court erred in its mandatory application of the sentencing
guidelines.1 We affirm Wilkes’ convictions, vacate his sentence,
and grant his motion to remand for resentencing.
This court reviews this claim for plain error, as Wilkes
did not object in the district court to his sentence on the basis
1
We previously deferred ruling on Wilkes’ motion to remand
based on Booker. In his brief, Wilkes does not raise a Sixth
Amendment argument under Booker. In fact, Wilkes argues the
“reasonableness” standard applied to cases on appeal post-Booker.
Because Wilkes was sentenced pre-Booker, this analysis is
inapplicable. However, Wilkes has sufficiently stated a claim that
the district court erred in treating the sentencing guidelines as
mandatory.
- 2 -
of the mandatory application of the guidelines. United States v.
White, 405 F.3d 208, 223 (4th Cir.), cert. denied, 126 S. Ct. 668
(2005). To demonstrate plain error, a defendant must establish
that error occurred, that it was plain, and that it affected the
defendant’s substantial rights. United States v. Olano, 507 U.S.
725, 731-32 (1993); United States v. Hughes, 401 F.3d 540, 547-48
(4th Cir. 2005). If a defendant establishes 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).
In White, while this court determined that imposing a
sentence under the guidelines as mandatory was error that was
plain, it further held that prejudice would not be presumed
relative to such error. White, 405 F.3d at 219-20, 224. In
determining whether the error affected the outcome of the district
court proceedings, the court must consider, “whether ‘after
pondering all that happened without stripping the erroneous action
from the whole, . . . the judgment was . . . substantially swayed
by the error.’” Id. at 223 (citations and footnotes omitted). To
make this showing, a defendant must “demonstrate, based on the
record, that the treatment of the guidelines as mandatory caused
- 3 -
the district court to impose a longer sentence than it otherwise
would have imposed.” Id. at 224. Because “the record as a whole
provide[d] no 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 (citation
omitted) (first alteration added), this court concluded the error
did not affect White’s substantial rights and affirmed the
sentence. Id. at 225.
In this case, the district court sentenced Wilkes at the
bottom of the guidelines range on the drug counts.2 Because the
court intimated that it would have imposed a lighter sentence if it
were not bound by the guidelines on the drug convictions, the
record provides a nonspeculative basis for concluding that the
treatment of the guidelines as mandatory affected the district
court’s selection of the sentence imposed. See White, 405 F.3d at
223-25. Thus, we agree, and the Government also concedes, that
Wilkes is entitled to resentencing consistent with Booker.
Accordingly, we affirm Wilkes’ convictions, vacate his
sentence, and grant his motion to remand for resentencing.3 We
2
Because Wilkes received the statutory mandatory minimum on
the firearm counts, those sentences are not implicated by Booker.
3
Just as we noted in Hughes, 401 F.3d at 545 n.4, “[w]e of
course offer no criticism of the district judge, who followed the
law and procedure in effect at the time” of Wilkes’ sentencing.
Although the guidelines are no longer mandatory, Booker makes clear
that a sentencing court must still “consult [the] Guidelines and
take them into account when sentencing.” 543 U.S. at 264 (Breyer,
- 4 -
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
J., opinion of the Court). 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. Hughes, 401 F.3d at 546. If that sentence falls outside
the guidelines range, the court should explain its reasons for the
departure as required by 18 U.S.C.A. § 3553(c)(2). Hughes, 401
F.3d at 546. The sentence must be “within the statutorily
prescribed range and . . . reasonable.” Id. at 547.
- 5 -