UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 03-4055
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
VANDER KEITH GORE, a/k/a Keith,
Defendant - Appellant.
No. 03-4102
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JEFFREY LEE GORE, a/k/a Jeff,
Defendant - Appellant.
On Remand from the Supreme Court of the United States.
(S. Ct. Nos. 04-5762; 04-5763)
Submitted: March 27, 2006 Decided: May 31, 2006
Before KING, SHEDD, and DUNCAN, Circuit Judges.
No. 03-4055 affirmed; No. 03-4102 affirmed in part; vacated and
remanded in part by unpublished per curiam opinion.
Jerry L. Finney, FINNEY LAW FIRM, Columbia, South Carolina; Jack B.
Swerling, SWERLING LAW FIRM, Columbia, South Carolina, for
Appellants. Jonathan S. Gasser, United States Attorney, Rose Mary
Parham, Assistant United States Attorney, Florence, South Carolina,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
- 2 -
PER CURIAM:
These cases are before us on remand from the United
States Supreme Court for further consideration in light of United
States v. Booker, 543 U.S. 220 (2005). In June 2001, Jeffrey Lee
Gore (“Jeffrey Gore”) and his brother, Vander Keith Gore (“Keith
Gore”), were indicted for multiple violations of 21 U.S.C. §§
841(a)(1), 846 (2000). The Gore brothers entered into plea
agreements and, consistent with these agreements, pled guilty to
the first count of the superseding indictment. In January 2003,
Jeffrey Gore was sentenced to 360 months’ imprisonment, and Keith
Gore was sentenced to 240 months’ imprisonment.
In United States v. Gore, 93 Fed App’x 569 (4th Cir.
Apr. 6, 2004) (unpublished), vacated, 125 S. Ct. 1035 (2005), we
affirmed their sentences. After reviewing Jeffrey Gore’s appeal in
light of Booker, we vacate his sentence and remand for
resentencing. After reviewing Keith Gore’s appeal in light of
Booker, we affirm his sentence. Their convictions are affirmed for
the reasons stated in our 2004 opinion.
In Booker, the Supreme Court held that the mandatory
manner in which the 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 244.
- 3 -
There are two types of error under Booker: a violation
of the Sixth Amendment, by imposing a sentence greater than the
maximum permitted based on facts found by a jury or admitted by the
defendant, and a failure to treat the Sentencing Guidelines as
advisory. United States v. Hughes, 401 F.3d 540, 552 (4th Cir.
2005).
Although we do not find that the district court committed
the first type of error in Jeffrey Gore’s case,1 we conclude that
the district court erred in applying the Sentencing Guidelines as
mandatory.2 Because Jeffrey Gore did not preserve this claim in
the district court, we review for plain error. See Hughes, 401
F.3d at 547.
1
Specifically, consideration of only the conduct to which
Jeffrey Gore admitted in his plea agreement and at the sentencing
hearing yielded a total offense level of forty-two; based on a
criminal history category of I, Jeffrey Gore’s range of
imprisonment under the Sentencing Guidelines would have been 360
months to life imprisonment. This is precisely the range of
imprisonment calculated by the district court. Although the court
impermissibly enhanced Jeffrey Gore’s offense level based on facts
he did not admit, the court also reduced the offense level for
acceptance of responsibility, and we do not consider that reduction
on appeal. See United States v. Evans, 416 F.3d 298, 300 n.4 (4th
Cir. 2005) (looking to the guideline range based on admitted
conduct or facts found by a jury and disregarding any reduction for
acceptance of responsibility). Therefore, Jeffrey Gore’s 360-month
sentence does not violate the Sixth Amendment. See id. at 300-01
(holding that if a sentence does not exceed the maximum authorized
by facts admitted by defendant or found by jury, there is no Sixth
Amendment violation).
2
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 sentencing.
- 4 -
In United States v. White, 405 F.3d 208 (4th Cir.), cert.
denied, 125 S. Ct. 668 (2005), we held that treating the guidelines
as mandatory was error in light of Booker, and that the error was
plain. White, 405 F.3d at 216-17. We declined to presume
prejudice, id. at 217-22, holding that the “prejudice inquiry,
therefore, is . . . 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
(internal quotation marks and citations omitted).
To make this showing, a defendant must “demonstrate,
based on the record, that the treatment of the guidelines as
mandatory caused 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
(quoting Williams v. United States, 503 U.S. 193, 203 (1992)), we
concluded in White that the error did not affect the defendant’s
substantial rights, and thus, we affirmed the sentence. Id. at
225; see also United States v. Collins, 412 F.3d at 524-25 (finding
that defendant failed to demonstrate prejudice from being sentenced
under a mandatory application of the sentencing guidelines).
Here, there is a nonspeculative basis on which to
conclude the district court’s application of the Sentencing
- 5 -
Guidelines as mandatory affected its selection of the sentence
imposed upon Jeffrey Gore. During the sentencing hearing, the
district court noted that [its] “discretion by the sentencing
guidelines is severely limited, and [it has] to live within the
law.” It sentenced Jeffrey Gore in accordance with the Sentencing
Guidelines, remarking of the 360-month sentence, “[I]f you say it
fast, it might not sound like much, but it is a lifetime. It is a
lot of time. And I think that’s more than enough in this
particular case.”
The 360-month sentence represented the bottom of the
applicable Sentencing Guidelines range. Because the district court
remarked that the sentence imposed was “more than enough” time in
Jeffrey Gore’s case, there exists a nonspeculative basis for
concluding that the treatment of the guidelines as mandatory
affected the district court’s selection of the sentence imposed.
White, 405 F.3d at 223; see also 18 U.S.C. § 3553(a) (2000)
(providing that the court “shall impose a sentence sufficient, but
not greater than necessary,” to meet the statutory objectives of
punishment, deterrence, avoidance of sentencing disparities, and
the like). Accordingly, we vacate Jeffrey Gore’s sentence and
remand his case to the district court for resentencing in light of
Booker.3
3
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. On
- 6 -
Keith Gore was sentenced to 240 months’ imprisonment for
his offense. See 21 U.S.C. § 841(b)(1)(A) (2000). This term was
the statutory mandatory minimum sentence, as the Government had
alleged in the superseding indictment and provided notice in a 21
U.S.C. § 851 (2000) information that he had one prior conviction
for a felony drug offense. This enhanced penalty was permissible.
See Almendarez-Torres v. United States, 523 U.S. 224, 233-36,
243-44 (1998) (marking an exception, in the case of a fact of a
prior conviction, to the general rule that a district court may not
impose a sentence greater than the maximum authorized by the facts
found by the jury or admitted by the defendant in a guilty plea);
Harris v. United States, 536 U.S. 545, 567-68 (2002) (holding that
Apprendi v. New Jersey, 530 U.S. 466 (2000), applies to facts that
increase the sentence beyond the statutory maximum, but not to
facts that merely increase the mandatory minimum sentence); United
remand, the sentence must be “within the statutorily prescribed
range and . . . reasonable.” Hughes, 401 F.3d at 547.
Specifically, district courts 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 18 U.S.C.A.
§ 3553(a) (West 2000 & Supp. 2005) 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). United States v.
Green, 436 F.3d 449, 455-56 (4th Cir. 2006). A sentence not
imposed within the properly calculated range must be based on the
factors listed under § 3553(a). Id. at 456.
- 7 -
States v. Cheek, 415 F.3d 349, 351-54 (4th Cir. 2005) (reaffirming
validity of Almendarez-Torres after Booker).
The district court correctly set the bottom of the
Sentencing Guidelines range at 240 months’ imprisonment. Although
Keith Gore correctly notes that the district court erred in
sentencing him under the then-mandatory Sentencing Guidelines,
Booker is of no assistance to him. As we held in United States v.
Robinson, 404 F.3d 850, 862 (4th Cir. 2005), “Booker did nothing to
alter the rule that judges cannot depart below a statutorily
provided minimum sentence.” Accordingly, we affirm Keith Gore’s
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.
No. 03-4055 AFFIRMED
No. 03-4102 AFFIRMED IN PART;
VACATED AND REMANDED IN PART
- 8 -