UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4931
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
CHRISTOPHER WAYNE TURNER,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Malcolm J. Howard,
District Judge. (CR-04-86)
Submitted: May 24, 2006 Decided: June 23, 2006
Before MOTZ, TRAXLER, and KING, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
Robert H. Hale, Jr., 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Unpublished opinions are not binding precedent in this circuit.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:
Christopher Wayne Turner appeals his seventy-month prison
sentence resulting from his plea of guilty to distribution of more
than five grams of cocaine base in violation of 21 U.S.C. § 841
(2000), but does not appeal from his conviction. We vacate his
sentence and remand for resentencing in light of United States v.
Booker, 543 U.S. 220, 125 S. Ct. 738 (2005).
Turner claims the district court erred by applying the
Sentencing Guidelines as mandatory. In Booker, the Supreme Court
concluded that even in the absence of a Sixth Amendment violation,
the imposition of a sentence under the mandatory guidelines regime
was error. Booker, 125 S. Ct. at 769; see also United States v.
White, 405 F.3d 208, 216-17 (4th Cir. 2005). This court explained
in United States v. Hughes, 401 F.3d 540 (4th Cir. 2005), that
sentencing under a mandatory regime is “a separate class of error
. . . distinct from the Sixth Amendment claim that gave rise to the
decision in Booker.” Hughes, 401 F.3d at 553. The court
recognized that “[t]his error . . . may be asserted even by
defendants whose sentences do not violate the Sixth Amendment.”
Id. Such is the case here.1
1
While the district court sentenced Turner using a higher drug
quantity than he admitted, no Sixth Amendment error occurred
because the sentence imposed was less than the maximum sentence
that would have been authorized under the Guidelines by the drug
quantity Turner admitted, absent the downward adjustment Turner
received for acceptance of responsibility. See United States v.
Evans, 416 F.3d 298, 300 (4th Cir. 2005).
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As Turner raised a timely objection under Blakely v.
Washington, 542 U.S. 296 (2004), he has preserved his claim of
statutory Booker error. United States v. Rodriguez, 433 F.3d 411,
415 (4th Cir. 2006). Thus, we review his claim for harmless error,
which places “the burden . . . on the Government to show that such
an error did not affect the defendant’s substantial rights.” Id.
at 416. The Government concedes that it cannot show the error was
harmless and cannot satisfy its burden of showing the error did not
affect Turner’s substantial rights. There is no indication from
the record how the district court would sentence Turner under the
current advisory guidelines system. Therefore, Turner must be
resentenced.2
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.” 125 S. Ct. at 767. On remand, the district court
should first determine the appropriate sentencing range under the
Guidelines, making all the factual findings appropriate for that
determination. See Hughes, 401 F.3d at 546. The court should
consider this sentencing range along with the other factors
described in 18 U.S.C. § 3553(a) (2000), and then impose a
sentence. Id. If that sentence falls outside the Guidelines
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 Turner’s sentencing.
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range, the court should explain its reasons for the departure as
required by 18 U.S.C. § 3553(c)(2) (2000). Id. The sentence must
be “within the statutorily prescribed range and . . . reasonable.”
Id. at 546-47.
Accordingly, we vacate Turner’s sentence and remand for
resentencing in light of Booker. 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.
VACATED AND REMANDED
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