UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 03-4672
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
MARK KEVIN MAYES,
Defendant - Appellant.
On Remand from the Supreme Court of the United States.
(S. Ct. No. 04-6861)
Submitted: April 10, 2006 Decided: May 31, 2006
Before WILKINSON, LUTTIG,* and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Terry N. Grimes, Roanoke, Virginia, for Appellant. John L.
Brownlee, United States Attorney, Anthony P. Giorno, Assistant
United States Attorney, Roanoke, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
*
Judge Luttig was a member of the original panel but did not
participate in this decision. This opinion is filed by a quorum of
the panel pursuant to 28 U.S.C. § 46(d).
PER CURIAM:
Mark Kevin Mayes was convicted by a jury of possession of
a firearm by a convicted felon, possession with intent to
distribute five or more grams of methamphetamine, and possession of
a firearm in furtherance of a drug trafficking crime, in violation
of 18 U.S.C. §§ 922(g)(1), 924(c)(1); 21 U.S.C. § 841 (2000).
Although Mayes denied at trial that the methamphetamine and
revolver found in a vehicle stop were his, he stipulated that the
quantity of the methamphetamine seized was thirty-three grams,
containing 7.6 grams of pure methamphetamine. At sentencing, the
district court sustained Mayes’s objection to being held
responsible for more than the drug quantity found in the search but
overruled his objection to an enhancement for obstruction of
justice based on his perjury during trial. Thus, Mayes’s total
offense level was twenty-eight. With his criminal history category
of VI, the guideline range for counts one and two was 140 to 175
months. The court imposed concurrent sentences of 160 months for
counts one and two and a consecutive sixty-month term for count
three.
We affirmed Mayes’s convictions and sentence. See United
States v. Mayes, 103 F. App’x 495 (4th Cir. 2004) (unpublished).
The Supreme Court thereafter granted Mayes’s petition for
certiorari, vacated this court’s judgment, and remanded to this
court for further consideration in light of United States v.
- 2 -
Booker, 543 U.S. 220 (2005). Having reconsidered Mayes’s sentence
in light of Booker, we affirm.
On remand, Mayes asserts his sentence violated his Sixth
Amendment right to a trial by jury in light of Booker because the
sentence was enhanced by the district court based on Mayes’s
responsibility for 7.6 grams of pure methamphetamine and based on
his false testimony at trial. Moreover, he reasserts his arguments
that his testimony did not rise to the level necessary to
constitute obstruction of justice and that the district court did
not specifically make the necessary findings to support the
enhancement.
Because Mayes did not raise a Booker claim in the
district court, we review his sentence for plain error. See United
States v. Hughes, 401 F.3d 540, 547 (4th Cir. 2005). To
demonstrate plain error, a defendant must establish that error
occurred, that it was plain, and that it affected his substantial
rights. United States v. Olano, 507 U.S. 725, 731-32 (1993). If
a defendant establishes these requirements, the court’s discretion
to correct the error “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 quotations and citation omitted).
- 3 -
In Booker, the Supreme Court held that the mandatory
guidelines scheme, which provided for sentence enhancements based
on facts found by the court alone and not by the jury, “violated
the Sixth Amendment imperative that ‘[a]ny fact (other than a prior
conviction) which is necessary to support a sentence exceeding the
maximum authorized by the facts established by . . . a jury verdict
must be admitted by the defendant or proved to a jury beyond a
reasonable doubt.’” Hughes, 401 F.3d at 546 (internal quotations
and citation omitted).
Mayes’s sentence based on his responsibility for 7.6
grams of pure methamphetamine was supported both by his admission
to that quantity and the jury’s verdict that he possessed the
methamphetamine with intent to distribute. Moreover, although
Mayes denied at trial that the methamphetamine and revolver were
his, the jury obviously did not believe him and necessarily
concluded he gave false testimony. Mayes does not dispute that his
testimony, relating to essential elements of the charges against
him, concerned a material matter. Instead, he suggests he “did
little more than testify at trial that he was drunk on the night in
question and did not remember what happened.” This assertion is
belied by the record. Mayes explicitly denied that he had
possessed the methamphetamine and revolver, but the jury found that
he had knowingly done so. Thus, we conclude that the district
court’s application of the obstruction enhancement in this case was
- 4 -
not Booker error, because the jury “necessarily, albeit implicitly,
found that he had engaged in behavior that fits within § 3C1.1.”
See United States v. Rodriguez, 398 F.3d 1291, 1298-99 n.5 (11th
Cir.), cert. denied, 125 S. Ct. 2935 (2005).
Even if the district court’s enhancement constituted
Booker error, we would decline to notice the error because there
can be no question that the jury, having found that the offenses
were committed, would also have determined that Mayes willfully and
falsely testified about a material matter. See United States v.
Smith, 441 F.3d 254, 272-73 (4th Cir. 2006); see also Johnson v.
United States, 520 U.S. 461 (1997) (plain error in failing to
submit question of materiality to jury did not seriously affect the
fairness, integrity, or public reputation of judicial proceedings).
Based on the foregoing and the reasons stated in our
prior opinion, we affirm Mayes’s convictions and sentence. 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
- 5 -