UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4984
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
THOMAS KENDRICK WILSON,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at New Bern. Malcolm J. Howard,
District Judge. (CR-04-35)
Submitted: May 19, 2006 Decided: June 7, 2006
Before WILKINSON, NIEMEYER, and MICHAEL, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant. Frank D. Whitney, United States Attorney, Anne M.
Hayes, Christine Witcover Dean, Assistant United States Attorneys,
Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Thomas Kendrick Wilson pled guilty to being a felon in
possession of a firearm, in violation of 18 U.S.C. § 922(g)(1)
(2000). Wilson was sentenced to 84 months’ imprisonment. Wilson
appeals his sentence, arguing the district court erred in applying
the federal sentencing guidelines as mandatory in violation of
United States v. Booker, 543 U.S. 220 (2005).
In Booker, which issued after Wilson was sentenced, 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), 3742(e) (West 2000 & Supp. 2005), thereby
making the guidelines advisory. See United States v. Hughes, 401
F.3d 540, 546 (4th Cir. 2005).
In reviewing sentences for errors that do not involve a
Sixth Amendment violation, this court may apply the plain error and
harmless error doctrines in determining whether resentencing is
required. Booker, 125 S. Ct. at 769; see Fed. R. Crim. P. 52(a)
(appellate court may disregard any error that does not affect
substantial rights). Because Wilson objected below based on
Blakely v. Washington, 542 U.S. 296 (2004), this claim is reviewed
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under harmless error analysis. United States v. Mackins, 315 F.3d
399, 405 (4th Cir. 2003). Under harmless error review, the
Government bears the burden of showing beyond a reasonable doubt
that the error did not affect the defendant’s substantial rights.
Mackins, 315 F.3d at 405; United States v. Stokes, 261 F.3d 496,
499 (4th Cir. 2001). Affecting substantial rights means that the
error affected the outcome of the proceedings. Stokes, 261 F.3d at
499. The harmless error standard permits an error at sentencing to
be disregarded if the reviewing court is certain that any such
error “did not affect the district court’s selection of the
sentence imposed.” Williams v. United States, 503 U.S. 193, 203
(1992).
While we find the imposition of Wilson’s sentence under
the then-mandatory sentencing guidelines was error,* see United
States v. White, 405 F.3d 208, 216-17 (4th Cir.), cert. denied, 126
S. Ct. 668 (2005), we find the error was harmless because the
district court announced an identical alternate sentence and thus
the error did not affect the selection of Wilson’s sentence. See
United States v. Revels, __ F.3d __, 2006 WL 1134148, *3 (4th Cir.
May 1, 2006).
*
As in United States v. Hughes, 401 F.3d 540, 545 n.4 (4th
Cir. 2005), “[w]e of course offer no criticism of the district
judge, who followed the law and procedure in effect at the time of
[the defendant’s] sentencing.”
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Accordingly, we affirm Wilson’s conviction 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
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