UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-5085
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ROMONA TAYLOR WILLIAMS,
Defendant - Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Charleston. David A. Faber, Chief
District Judge. (CR-03-284)
Submitted: May 3, 2006 Decided: July 5, 2006
Before MICHAEL, TRAXLER, and GREGORY, Circuit Judges.
Remanded by unpublished per curiam opinion.
Mary Lou Newberger, Federal Public Defender, Jonathan D. Byrne,
Appellate Counsel, Charleston, West Virginia, for Appellant.
Charles T. Miller, United States Attorney, Hunter P. Smith, Jr.,
Assistant United States Attorney, Charleston, West Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Romona Taylor Williams (“Williams”) pled guilty to one
count of mail fraud, in violation of 18 U.S.C. § 1341 (2000), and
was sentenced to six months of imprisonment, followed by six months
of home confinement. Before this court is Williams’ appeal and a
joint motion to remand for resentencing.
Williams argues the sentence imposed violates her Sixth
Amendment rights under United States v. Booker, 543 U.S. 220
(2005), and challenges the district court’s application of the
sentencing guidelines as mandatory. Because she objected at
sentencing based on Blakely v. Washington, 542 U.S. 296 (2004),
Williams has preserved the constitutional issue. United States v.
Rodriguez, 433 F.3d 411, 415 (4th Cir. 2006). For the reasons set
forth below, we grant the motion to remand for resentencing.
As calculated by the probation officer and adopted by the
district court, Williams’ base offense level was six. United
States Sentencing Guidelines Manual § 2B1.1(a)(2) (2003) (“USSG”).
This was increased six levels, pursuant to USSG § 2B1.1(b)(1)(D)
(2003), because the total loss attributable to Williams was
$63,788.65. Williams’ offense level was then raised two levels for
abuse of trust. USSG § 3B1.3 (2003). After a two-level reduction
for acceptance of responsibility, Williams’ total offense level was
twelve. USSG § 3E1.1(a) (2003). This, coupled with a criminal
- 2 -
history category I, yielded a sentencing range of ten to sixteen
months’ imprisonment. USSG Ch. 5, Pt. A (2003) (sentencing table).
We first find the district court did not commit Sixth
Amendment error in sentencing Williams. A Sixth Amendment error
occurs when the district court imposes a sentence greater than the
maximum permitted based on facts found by a jury or admitted by the
defendant. Booker, 543 U.S. at 244. To ascertain whether the
defendant’s sentence violated her Sixth Amendment rights post-
Booker, this court employs 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). Williams conceded a total loss of $12,634. Thus,
according to Williams’ own admission, her base offense level is
ten. USSG § 2B1.1(b)(1)(C) (2003) (requiring a four-level increase
for total loss greater than $10,000). Assuming a category I
criminal history, Williams’ sentencing range would be six to twelve
months’ imprisonment. See USSG Ch. 5, Pt. A. As Williams’
sentence does not exceed the maximum sentence authorized by the
facts she admitted, there is no Sixth Amendment violation.
We next address the district court’s application of the
guidelines as mandatory; because Williams preserved the issue by
objecting below, we review for harmless error. See Booker, 543
U.S. at 268; Rodriguez, 433 F.3d at 416. “[T]he burden is on the
government to prove that the district court would not have imposed
- 3 -
a lesser sentence if it had known that the Guidelines were not
mandatory.” United States v. Williams, 445 F.3d 724, 741 (4th Cir.
2006).
We conclude that the Government has not carried its
burden. The sentencing transcript reveals that the district court
explicitly relied on the minimum term authorized by the calculated
guidelines range as the controlling factor in determining Williams’
sentence. Though the district court did not sentence Williams to
the lowest sentence available under the guidelines, its comments
indicate that the minimum term was the baseline consideration for
its ultimate sentencing determination. Even though the twelve-
month sentence falls within the proper guidelines range, the
district court was laboring under the mistaken view that the
guidelines range was ten to sixteen months. Had the district court
faced the proper guidelines range of six to twelve months, it seems
likely that the district court would not have imposed a twelve-
month sentence — the top end of the range. Accordingly, we grant
the motion to remand for resentencing. 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.
REMANDED
- 4 -