UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 02-4877
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ERIC MARTIN VAN BUREN,
Defendant - Appellant.
On Remand from the Supreme Court of the United States.
(S. Ct. No. 04-5830)
Submitted: May 31, 2006 Decided: July 14, 2006
Before WILKINS, Chief Judge, and NIEMEYER and TRAXLER, Circuit
Judges.
Affirmed by unpublished per curiam opinion.
David L. Heilberg, MARTIN & RAYNOR, P.C., Charlottesville,
Virginia; Peter R. Roane, Charlottesville, Virginia, for Appellant.
John L. Brownlee, United States Attorney, Ray B. Fitzgerald, Jr.,
Assistant United States Attorney, Charlottesville, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Eric Martin Van Buren appealed the district court’s
judgment entered pursuant to his conviction for conspiracy to
possess with intent to distribute more than fifty grams of cocaine
base in violation of 21 U.S.C. §§ 841(a)(1), 846 (2000). We
affirmed. Thereafter, the Supreme Court vacated our decision and
remanded for further consideration in light of its decision in
United States v. Booker, 543 U.S. 220 (2005). After conducting
this review, we again affirm.
Van Buren contends that the district court improperly
sentenced him when it imposed a sentence greater than the maximum
authorized by the facts found by the jury alone in violation of
Booker. Because he failed to raise this claim below, we review it
for plain error. United States v. Hughes, 401 F.3d 540, 547 (4th
Cir. 2005). To meet the plain error standard: (1) there must be
an error; (2) the error must be plain; and (3) the error must
affect substantial rights. United States v. Olano, 507 U.S. 725,
732-34 (1993). If the three elements of the plain error standard
are met, the court may exercise its discretion to notice error only
if the error seriously affects “the fairness, integrity, or public
reputation of judicial proceedings.” Id. at 736 (citation
omitted).
The jury convicted Van Buren pursuant to an indictment
charging involvement with fifty or more grams of cocaine base. At
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sentencing, the district court held Van Buren accountable for 205
kilograms of cocaine base for a base offense level of thirty-eight
under U.S. Sentencing Guideline Manual § 2D1.1(c)(1) (2004). The
district court added two offense levels each for possession of a
firearm during the course of the drug conspiracy, organizing the
conspiracy, and obstruction of justice under USSG §§ 2D1.1(b)(1),
3B1.1(c), and 3C1.1. The district court assigned Van Buren a total
offense level of forty-four and a criminal history category of III,
resulting in a guideline range of life imprisonment. The district
court sentenced Van Buren to life imprisonment.
The Presentence Investigative Report (PSR) recommended a
drug quantity of 205 kilograms of cocaine base, far in excess of
the 1.5 kilograms required for a base offense level of thirty-eight
under USSG § 2D1.1(c)(1). Van Buren’s counsel did not object to
the PSR, nor did he object to the quantity at sentencing. Van
Buren filed a pro se objection to the 205 kilogram drug quantity,
arguing that the testimony at trial did not support such a finding.
According to Van Buren, the largest quantity of crack that could
have been attributed to him based on the evidence at trial was no
more than 181 kilograms. By arguing for a drug quantity
substantially higher than 1.5 kilograms, it is arguable that
Van Buren implicitly admitted the facts necessary for a base
offense level of thirty-eight and no reversible Booker error
existed.
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Even if Van Buren did not admit a higher drug quantity,
the evidence of drug quantity was overwhelming and essentially
uncontroverted. In United States v. Cotton, 535 U.S. 625 (2002),
the Supreme Court held that when the evidence of the necessary drug
quantity was overwhelming and essentially uncontroverted, there was
no basis to conclude the error seriously affected the fairness,
integrity, or public reputation of judicial proceedings on plain
error review. Id. at 633; United States v. Smith, 441 F.3d 254,
272 (4th Cir. 2006). At trial, Richard Shirley testified that Van
Buren supplied him with large quantities of cocaine base to sell,
usually between one-half kilogram and one kilogram, on a weekly
basis for nearly three years. Roy Samuels testified that Van Buren
provided him with cocaine base on a regular basis for approximately
one year; Samuels estimated that Van Buren supplied him with a
total of four or five kilograms over the course of that year.
Another cocaine base dealer, Paul Brown, testified that he
generally received from Van Buren one-half kilogram of cocaine base
every three to four days over a two-year period. This testimony
was only part of the overwhelming and essentially uncontroverted
evidence that put Van Buren far in excess of the 1.5 kilograms of
cocaine base necessary to trigger the application of a base offense
level of thirty-eight. Accordingly, we decline to find that the
district court committed reversible error under Booker when it
sentenced Van Buren using a drug quantity of over 1.5 kilograms.
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The PSR also recommended a two offense level enhancement
under USSG § 3B1.1(c) for a leadership role in the conspiracy.
Numerous witnesses testified that Van Buren obtained the cocaine
base for sale and recruited others, including his brother, to sell
the drugs on the street. The evidence of his leadership role was
also overwhelming and essentially uncontroverted. There was no
basis to conclude the district court’s application of the
leadership role enhancement seriously affected the fairness,
integrity, or public reputation of judicial proceedings on plain
error review. See Cotton, 535 U.S. at 633; Johnson v. United
States, 520 U.S. 461, 468-70 (1997); and Smith, 441 F.3d at 272.
The district court did not commit reversible error under Booker
when it sentenced Van Buren using an enhancement for his leadership
role.
The PSR recommended a two offense level enhancement under
USSG § 2D1.1(b)(1) because Van Buren carried a firearm during the
course of the conspiracy and a two offense level enhancement under
USSG § 3C1.1 for obstruction of justice for perjurious testimony
and providing law enforcement false information. Even assuming
these enhancements were, viewed in isolation, improper, we find no
reversible error. Without those offense level increases, Van
Buren’s total offense level would be forty. He had a criminal
history category of III, resulting in a guideline range of 360
months to life imprisonment. Because Van Buren’s life imprisonment
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sentence could have been imposed even absent the improper
enhancements, such enhancements did not violate the Sixth
Amendment. See United States v. Evans, 416 F.3d 298, 300-01 (4th
Cir. 2005).
The district court’s treatment of the sentencing
guidelines as mandatory also does not require resentencing. While
the district court erred in treating the guidelines as mandatory,
see United States v. Hughes, 401 F.3d 540, 547-48 (4th Cir. 2005),
we have held that in the plain error context, the error of
sentencing under the mandatory guidelines regime does not warrant
a presumption of prejudice. United States v. White, 405 F.3d 208,
224 (4th Cir. 2005). Van Buren cannot satisfy the prejudice
requirement of the plain error standard. Nothing in the record
suggests the error in applying the guidelines as mandatory affected
the court’s ultimate determination of Van Buren’s sentence or
affected Van Buren’s substantial rights.
Accordingly, we grant Van Buren’s motion to file a pro se
supplemental brief, deny his motion to remand, and affirm the
judgment of the district court. 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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