UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4167
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JAMES BUTLER,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Florence. C. Weston Houck, Senior District
Judge. (CR-03-657)
Submitted: May 31, 2006 Decided: June 26, 2006
Before MICHAEL, KING, and GREGORY, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
James T. McBratney, Jr., MCBRATNEY LAW FIRM, P.A., Florence, South
Carolina, for Appellant. J. Strom Thurmond, Jr., United States
Attorney, William E. Day, II, Assistant United States Attorney,
Florence, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
James Butler pled guilty, pursuant to a written plea
agreement, to fraudulent use of unauthorized access devices. Prior
to the Supreme Court’s decision in United States v. Booker, 543
U.S. 220 (2005), the district court sentenced Butler to thirty-four
months’ imprisonment. On appeal, Butler asserts that his sentence
violated the Sixth Amendment. We agree, and we therefore vacate
Butler’s sentence and remand for resentencing.
Because Butler did not raise an objection below based on
the Sixth Amendment, we review for plain error. United States v.
Hughes, 401 F.3d 540, 547 (4th Cir. 2005). The district court
increased Butler’s offense level for relocating to another
jurisdiction to evade law enforcement, see U.S. Sentencing
Guidelines Manual § 2B1.1(b)(8) (2002), and for trafficking or
transferring unauthorized access devices or unlawfully producing or
possessing identification, see USSG § 2B1.1(b)(9). Butler did not
admit to the facts supporting these enhancements.1 Without these
judicially-determined sentencing enhancements, Butler’s offense
level would have been 10.2 Because he was in criminal history
1
Butler objected to the § 2B1.1(b)(8) enhancement. Although
he did not object to the § 2B1.1(b)(9) enhancement, a defendant’s
failure to object to the facts in his PSR does not constitute a
Booker admission. See United States v. Milam, 443 F.3d 382 (4th
Cir. 2006).
2
While Butler did receive a reduction for acceptance of
responsibility, when determining if Booker error occurred, we look
to the guideline range based on admitted conduct or facts found by
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category VI, his guideline range would have been twenty-four to
thirty months in prison. His thirty-four-month sentence imposed
under the mandatory guidelines scheme was therefore longer than the
sentence the district court could have imposed without violating
the Sixth Amendment. We therefore conclude that plain error
affecting Butler’s substantial rights occurred in his sentencing.3
Hughes, 401 F.3d at 550-51.
Accordingly, we vacate Butler’s sentence and remand for
resentencing. Although the Sentencing Guidelines are no longer
mandatory, Booker makes it clear that a sentencing court still must
“consult [the] Guidelines and take them into account when
sentencing.” Booker, 543 U.S. at 244-45. On remand, the district
court should first determine the appropriate sentencing range under
the Guidelines, making all factual findings appropriate for that
determination. Hughes, 401 F.3d at 546. The court should consider
this sentencing range, along with the other factors described in 18
U.S.C.A. § 3553(a) (West 2000 & Supp. 2005), and then impose a
sentence. If that sentence falls outside the Guideline range, the
court should explain the reasons for the departure as required by
18 U.S.C.A. § 3553(c)(2) (West 2000 & Supp. 2005). Hughes, 401
a jury, and disregard any reduction for acceptance of
responsibility. See United States v. Evans, 416 F.3d 298, 300 n.4
(4th Cir. 2005).
3
As we noted in Hughes, “[w]e of course offer no criticism of
the district court judge who followed the law and procedure in
effect at the time” of Butler’s sentencing. 401 F.3d at 545 n.4.
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F.3d at 546. The sentence must be “within the statutorily
prescribed range and . . . reasonable.” Id.
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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