CORRECTED OPINION
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 03-4630
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JIMMY RICHARD HUSBAND,
Defendant - Appellant.
On Remand from the Supreme Court of the United States.
(No. 04-1698)
Submitted: February 17, 2006 Decided: June 1, 2006
Before WILKINSON, GREGORY, and SHEDD, Circuit Judges.
Affirmed in part, vacated in part, and remanded by unpublished per
curiam opinion.
Marcia G. Shein, Decatur, Georgia, for Appellant. Paul J. McNulty,
United States Attorney, Michael C. Moore, Assistant United States
Attorney, Norfolk, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
In April 2003, Jimmy Richard Husband pled guilty to eight
counts of sexual exploitation of a minor, in violation of 18 U.S.C.
§§ 2251 (a), (d) (1994). The district court sentenced Husband to
eighty-seven months of imprisonment on each of the eight counts and
ordered that the terms be served consecutively, for a total of 696
months. We affirmed his convictions and sentence. United
States v. Husband, No. 03-4630, 119 F. App’x 475 (4th Cir. 2005).
Husband filed a petition for a writ of certiorari in the Supreme
Court. On October 3, 2005, the Supreme Court granted the petition,
vacated this Court’s judgment, and remanded for further
consideration in light of United States v. Booker, 543 U.S. 220
(2005). See Husband v. United States, 126 S. Ct. 322 (2005).
On remand, Husband argues that his sentence is
unconstitutional in light of the Supreme Court’s decision in
Booker. In Booker, the Supreme Court held that the mandatory
manner in which the federal 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. 543 U.S. at 233-34 (Stevens, J., opinion of the Court).
The Court remedied the constitutional violation by severing two
statutory provisions, 18 U.S.C.A. § 3553(b)(1) (West Supp. 2005)
(requiring sentencing courts to impose a sentence within the
applicable guideline range), and 18 U.S.C.A. § 3742(e) (West 2000
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& Supp. 2005) (setting forth appellate standards of review for
guideline issues), thereby making the guidelines advisory. Id. at
245-46. (Breyer, J., opinion of the Court).
We vacate Husband’s sentence and remand for resentencing
consistent with the Booker decision. 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.” 543 U.S. at 264. On remand, the
district court should first determine the appropriate sentencing
range under the guidelines, making all factual findings appropriate
for that determination. See United States v. Hughes, 401 F.3d 540,
546 (4th Cir. 2005). The court should consider this sentencing
range along with the other factors described in § 3553, 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 § 3553(c)(2). Id. The sentence must be
“within the statutorily prescribed range and . . . reasonable.”
Id. at 546-47.
Because the Supreme Court’s remand order does not affect
our rejection in our prior opinion of Husband’s claims that the
statute of limitations had expired, that his plea was not knowing
and voluntary, that there was no adequate basis for accepting his
plea, and that he received ineffective assistance of counsel, we
affirm Husband’s convictions for the reasons set forth in the prior
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opinion. 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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