UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4116
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
STANLEY KELLY,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. James C. Fox, Senior
District Judge. (CR-04-238)
Submitted: May 26, 2006 Decided: June 30, 2006
Before MOTZ, TRAXLER, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Dennis H. Sullivan, Jr., THE SULLIVAN LAW FIRM, P.C., Wilmington,
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Unpublished opinions are not binding precedent in this circuit.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:
Stanley Kelly pled guilty to possession of a firearm and
ammunition by a convicted felon, in violation of 18 U.S.C.
§ 922(g)(1) (2000). He appeals his 57-month sentence arguing that
he was sentenced in violation of his Sixth Amendment rights under
United States v. Booker, 543 U.S. 220 (2005), and that the court’s
application of the guidelines as mandatory warrants resentencing.
We affirm.
Kelly first argues that he was sentenced in violation of
his Sixth Amendment rights under Booker. Because Kelly preserved
this issue by objecting to the presentence report on the basis of
Blakely v. Washington, 542 U.S. 296 (2004), this court reviews for
harmless error. United States v. Rodriguez, 433 F.3d 411, 415 (4th
Cir. 2006). Under the harmless error standard, this court “must
reverse unless [it] find[s] this constitutional error harmless
beyond a reasonable doubt, with the Government bearing the burden
of proving harmlessness.” United States v. Mackins, 315 F.3d 399,
405 (4th Cir. 2003) (citations omitted); see United States v.
White, 405 F.3d 208, 223 (4th Cir.) (discussing difference in
burden of proving that error affected substantial rights under
harmless error standard in Fed. R. App. P. 52(a), and plain error
standard in Fed. R. App. P. 52(b)), cert. denied, 126 S. Ct. 668
(2005).
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To ascertain whether the defendant’s sentence violated
his or her Sixth Amendment rights post-Booker, this court looks to
the defendant’s “guideline range based on the facts he admitted
before adjusting that range for acceptance of responsibility.”
United States v. Evans, 416 F.3d 298, 300 n.4 (4th Cir. 2005).
Here, excluding the two-level enhancement for a stolen firearm and
the three-level downward adjustment for acceptance of
responsibility, Kelly’s offense level would have been twenty and he
would have been subject to a higher guideline range of 51 to 63
months of imprisonment. U.S. Sentencing Guidelines Manual Ch. 5,
Pt. A (Sentencing Table) (2004). Because Kelly’s 57-month sentence
does not exceed the maximum sentence authorized by the facts he
admitted, the enhancement did not result in Sixth Amendment error.
Evans, 416 F.3d at 300-01.
Kelly also claims the district court erred in calculating
his criminal history category because the district court assigned
him criminal history points for the commission of the crime while
on probation for a prior offense pursuant to USSG §§ 4A1.1(d),
4A1.2. He claims this enhancement violated Booker because the
district court’s finding that he committed the offense while on
probation was a fact neither admitted by him nor found by a jury
beyond a reasonable doubt.
In Almendarez-Torres v. United States, 523 U.S. 224
(1998), the Supreme Court held that “the government need not allege
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in its indictment and need not prove beyond reasonable doubt that
a defendant had prior convictions for a district court to use those
convictions for purposes of enhancing a sentence.” See also United
States v. Cheek, 415 F.3d 349 (4th Cir.) (noting that
Almendarez-Torres was not overruled by Booker), cert. denied, 126
S. Ct. 640 (2005). However, in United States v. Washington, 404
F.3d 834, 842-43 (4th Cir. 2005), this court, applying Shepard v.
United States, 544 U.S. 13 (2005), held that relying on facts
outside the indictment in order to conclude a prior conviction for
burglary was a crime of violence that enhanced the defendant’s
offense level was plain error warranting correction.
Kelly’s case is distinguishable from the facts in
Washington, because the district court’s assessment of criminal
history points in this case only required that the district court
determine when Kelly committed the offenses relative to the date of
the instant offense and how long his probation lasted--matters
ascertainable from the judicial record. Thus, we find that the
court’s assessment of criminal history points because Kelly was
under a criminal justice sentence when he committed the charged
offenses was not improper. See United States v. Thompson, 421 F.3d
278, 285 (4th Cir. 2005) (“The trial judge was entitled to rely
upon the [presentence report] because it bears the earmarks of
derivation from Shepard-approved sources such as the indictments
and state-court judgments from his prior convictions, and,
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moreover, [defendant] never raised the slightest objection either
to the propriety of its source material or to its accuracy.”),
cert. denied, 126 S. Ct. 1463 (2006).
Last, Kelly argues that his sentence must be vacated and
the case remanded for resentencing because the district court
treated the guidelines as mandatory. The Government responds that
the district court’s announcement of an identical alternative,
discretionary sentence rendered any error harmless.
This court has recognized that the application of the
guidelines as a mandatory determinant in sentencing is error that
is plain. White, 405 F.3d at 216-17. The court has also
recognized that a Blakely objection at sentencing is sufficient to
preserve a claim of statutory error in applying the guidelines in
a mandatory fashion. Rodriguez, 433 F.3d at 416.
In this case, the district court clearly announced that
it would impose the same sentence in this case if the guidelines
were treated as advisory. See White, 405 F.3d at 224. Given the
identical alternative sentence, the Government can show that the
error in treating the guidelines as mandatory did not affect
Kelly’s substantial rights. See White, 405 F.3d at 223 (noting
that substantial rights inquiry is the same under plain or harmless
error and that only difference is who bears burden of proof); see
also United States v. Revels, __ F.3d __, 2006 WL 1134148, *3 (4th
Cir. May 1, 2006) (holding a Sixth Amendment error harmless because
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the district court announced an identical alternate sentence after
considering the guidelines as advisory only and thus the error did
not affect the outcome of the proceeding). Because the district
court imposed a discretionary alternative sentence, Kelly cannot
demonstrate prejudice.
Accordingly, we affirm Kelly’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.
AFFIRMED
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