UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4190
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JAMES GOLLICK,
Defendant - Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Bluefield. David A. Faber, Chief
District Judge. (CR-03-160)
Submitted: June 16, 2006 Decided: July 11, 2006
Before MICHAEL, MOTZ, and TRAXLER, Circuit Judges.
Affirmed in part, vacated in part, and remanded by unpublished per
curiam opinion.
Sante Boninsegna, Jr., Pineville, West Virginia, for Appellant.
Kasey Warner, United States Attorney, John J. Frail, 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Unpublished opinions are not binding precedent in this circuit.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:
James Gollick appeals his sentence to eighty-seven months
in prison and three years of supervised release after pleading
guilty to possession with intent to distribute a quantity of
oxycodone, also known as oxycontin, on or about October 17, 2002,
in violation of 21 U.S.C. § 841(a)(1) (2000). Gollick’s attorney
filed a brief pursuant to Anders v. California, 386 U.S. 738
(1967), raising the issues of whether the district court erred in
calculating the drug weight for sentencing purposes and whether his
sentence violated the Sixth Amendment under Blakely v. Washington,
542 U.S. 296 (2004). Gollick filed a pro se supplemental brief
further addressing the drug weight issue and alleging ineffective
assistance of counsel at sentencing and on appeal.1 Because we
find plain error occurred in Gollick’s sentencing under United
States v. Booker, 543 U.S. 220 (2005), we vacate his sentence and
remand for resentencing in accordance with Booker.2
Because Gollick raised no objection at sentencing, we
review his sentence for plain error. See United States v. Hughes,
1
We construed Gollick’s pleading filed on December 15, 2004,
as his pro se supplemental brief.
2
Just as we noted in United States v. Hughes, 401 F.3d 540,
545 n.4 (4th Cir. 2005), “[w]e of course offer no criticism of the
district judge, who followed the law and procedure in effect at the
time” of Gollick’s sentencing. See generally Johnson v. United
States, 520 U.S. 461, 468 (1997) (stating an error is “plain” if
“the law at the time of trial was settled and clearly contrary to
the law at the time of appeal”).
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401 F.3d 540, 547 (4th Cir. 2005). “Any fact (other than a prior
conviction) which is necessary to support a sentence exceeding the
maximum authorized by the facts established by a plea of guilty or
a jury verdict must be admitted by the defendant or proved to the
jury beyond a reasonable doubt.” Booker, 543 U.S. at 244. We will
find plain error if the district court could not have imposed the
sentence it did without exceeding the relevant Sixth Amendment
limitation. See Hughes, 401 F.3d at 550-51.
Gollick pled guilty to possession with intent to
distribute a quantity of oxycodone. Although ninety and one-half
eighty-milligram oxycontin pills were seized from Gollick, he did
not stipulate to any drug quantity and no amount was indicated in
either the plea agreement or the indictment. The district court
determined Gollick’s base offense level was twenty-eight under U.S.
Sentencing Guidelines Manual (“USSG”) § 2D1.1(c) (2001) based on
findings in the presentence report that Gollick was responsible for
3100 eighty-milligram oxycontin tablets. With a three-level
reduction for acceptance of responsibility and criminal history
category III, Gollick’s sentencing guideline range was seventy to
eighty-seven months. While Gollick did not object to the
presentence report, his silence did not constitute an admission to
drug weight under Booker. See United States v. Milam, 443 F.3d 382
(4th Cir. 2006). If Gollick had been sentenced based on the ninety
and one-half oxycontin pills, his base offense level would have
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only been sixteen, see USSG § 2D1.1, resulting in a guideline range
of twenty-seven to thirty-three months. Because Gollick’s sentence
clearly exceeded the maximum authorized by his guilty plea, we find
plain error occurred at sentencing that affected his substantial
rights. We find Gollick’s remaining issues are meritless. We find
no support for Gollick’s challenge to the calculation of drug
weight, and we conclude his claims of ineffective assistance of
counsel should be raised in a 28 U.S.C. § 2255 (2000) proceeding.
See United States v. Richardson, 195 F.3d 192, 198 (4th Cir. 1999).
In accordance with Anders, we have reviewed the entire
record in this case and affirm Gollick’s conviction. We conclude,
however, that Gollick’s sentencing violated Booker. Accordingly,
although we affirm Gollick’s conviction, we vacate his sentence and
remand for resentencing.3 We deny Gollick’s counsel’s motion to
seal the Anders notice. We also deny Gollick’s pro se motions
3
Although the Sentencing Guidelines are no longer mandatory,
Booker makes clear that a sentencing court must still “consult
[the] Guidelines and take them into account when sentencing.”
Booker, 543 U.S. at 264. On remand, the district court should
first determine the appropriate sentencing range under the
guidelines, making all factual findings appropriate for that
determination. See Hughes, 401 F.3d at 546. The court should
consider this sentencing range along with the other factors
described in 18 U.S.C. § 3553(a) (2000), and then impose a
sentence. Id. If that sentence falls outside the guidelines
range, the court should explain its reasons for the departure as
required by 18 U.S.C. § 3553(c)(2) (2000). Id. The sentence must
be “within the statutorily prescribed range . . . and reasonable.”
Id. at 546-47.
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requesting new counsel, transcripts at government expense, and an
extension of time for additional pro se supplemental briefing.
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 IN PART,
VACATED IN PART, AND REMANDED
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