UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4544
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
DONALD WAYNE RYAN,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Harrisonburg. Glen E. Conrad, District
Judge. (CR-04-30016)
Submitted: June 1, 2006 Decided: June 28, 2006
Before TRAXLER and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Vacated and remanded by unpublished per curiam opinion.
David L. Heilberg, DYGERT, WRIGHT, HOBBS & HEILBERG, P.L.C.,
Charlottesville, Virginia, for Appellant. John L. Brownlee, United
States Attorney, Jean B. Hudson, Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Charlottesville, Virginia,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Donald Wayne Ryan appeals from his sentence for conspiring to
distribute crack cocaine. As explained below, we vacate his
sentence and remand this case to the district court for re-
sentencing.
I.
On September 1, 2004, Ryan entered into an agreement with the
Government to plead guilty to conspiracy to distribute or to
possess with intent to distribute more than fifty grams of crack
cocaine in violation of 21 U.S.C. §§ 846 & 841(b)(1)(A) (West 1999
& Supp. 2006) (hereinafter “Count One”) and to using, carrying, or
possessing a firearm during, in relation to, and in furtherance of
a drug trafficking crime in violation of 18 U.S.C. §
924(c)(1)(A)(I) (West 2000 & Supp. 2006) (hereinafter “Count
Three”). The indictment had alleged, and Ryan agreed to admit,
that the conspiracy began “in or about the period beginning in
2000" and continued until “in or about [March 10, 2004].” J.A. at
27, 56. Ryan also agreed to waive his right to appeal “any
sentencing guidelines factors or the Court’s application of the
sentencing guidelines factors to the facts of [his] case.” J.A. at
59.
The district court sentenced Ryan on May 5, 2005. On Count
One, the court initially calculated an advisory guidelines sentence
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between 168 and 210 months’ imprisonment. After prior notice to
Ryan’s counsel, the Government moved, and the district court
agreed, to treat Ryan’s earlier state court conviction for cocaine
possession as a prior felony drug offense. In accordance with §
841(b)(1)(A)’s mandatory minimum sentence of twenty years for this
category of repeat drug offenders, the district court set Ryan’s
initial advisory guidelines sentence for Count One at 240 months.
See United States Sentencing Guidelines § 5G1.1(b) (2004) (“Where
a statutorily required minimum sentence is greater than the maximum
of the applicable guideline range, the statutorily required minimum
sentence shall be the guideline sentence.”). The district court
then granted Ryan a downward departure based upon the Government’s
motion setting forth his substantial assistance to the Government,
and ultimately sentenced Ryan to 180 months in prison for Count
One. On Count Three, the court sentenced Ryan to an additional
sixty months to be served consecutively to his Count One sentence.
II.
Ryan now challenges on a number of grounds the district
court’s enhancement of his Count One sentence based on his prior
drug conviction. We review the sentence for reasonableness.
United States v. Davenport, 445 F.3d 366, 370 (4th Cir. 2006).
The Government initially asserted that in his plea agreement
Ryan waived his right to challenge his sentence, but in his reply
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brief Ryan claimed for the first time that his earlier conviction
does not qualify as a prior felony drug conviction under §
841(b)(1)(A). In a post-briefing motion to this court, the
Government withdrew its waiver defense with respect to that issue
and now requests that we remand Ryan’s case for re-sentencing in
light of this newly raised error.
Section 841(b)(1)(A) establishes a mandatory minimum sentence
of 120 months’ imprisonment, but increases that minimum to 240
months’ imprisonment for anyone who violates the statute “after a
prior conviction for a felony drug offense has become final.” Ryan
pleaded guilty to Count One of the indictment, which alleged that
he had engaged in a crack cocaine conspiracy that ended on or about
March 10, 2004. Ryan’s state conviction for possession of cocaine
did not become final until at least April 5, 2004.* This
conviction therefore does not qualify as a prior felony drug
conviction under Section 841(b)(1)(A).
When a sentence is imposed “as a result of an incorrect
application of the sentencing guidelines,” we must remand the case
for additional proceedings. 18 U.S.C.A. § 3742(f) (West 2000 &
Supp. 2006); see also United States v. Green, 436 F.3d 449, 457
*
The records of Ryan’s state drug conviction indicate that the
court placed Ryan on probation for the offense, but “withheld
formal adjudication of guilt,” on April 15, 2003. Reply Br. of
Appellant App. at 28. Ryan failed to appear as scheduled on April
5, 2004, and the court continued the case until his apprehension.
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(4th Cir. 2006) (noting that a sentence falling outside the
properly calculated guidelines range because of an “error in
construing or applying the guidelines” is unreasonable). The
district court’s error in treating Ryan’s cocaine possession
conviction as a prior felony drug conviction led it to fix Ryan’s
initial advisory guidelines sentence at 240 months instead of
between 168 to 210 months, which in turn affected his ultimate
sentence on Count One. Because the district court miscalculated
the advisory guidelines sentence applicable to Count One, we vacate
Ryan’s sentence on that count and remand his case for re-
sentencing.
III.
Having concluded that Ryan should be re-sentenced on Count
One, we do not reach Ryan’s other challenges to his sentence, nor
do we express any opinion on any other aspect of the reasonableness
of Ryan’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.
The sentence of the district court on Count One is
VACATED AND REMANDED.
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