Filed: August 31, 2006
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4093
(CR-04-140)
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JAMES DALE EVANS,
Defendant - Appellant.
O R D E R
The court amends its opinion filed August 25, 2006, as
follows:
On page 2, the first line, the words “James Dale Evans pled
guilty to” are corrected to read “James Dale Evans was found
guilty of.”
For the Court
/s/ Patricia S. Connor
____________________________
Clerk
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4093
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JAMES DALE EVANS,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Florence. Terry L. Wooten, District Judge.
(CR-04-140)
Submitted: July 31, 2006 Decided: August 25, 2006
Before WILLIAMS and KING, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
David B. Betts, Columbia, South Carolina, for Appellant.
Reginald I. Lloyd, 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Unpublished opinions are not binding precedent in this circuit.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 Dale Evans was found guilty of transporting or
shipping child pornography by computer, 18 U.S.C.A. § 2252A(a)(1)
(West Supp. 2006) (Counts One and Two); and possession of a computer
and disks containing child pornography transported by computer, 18
U.S.C.A. § 2252A(a)(5)(B) (West Supp. 2006) (Count Three).1 The
district court imposed a sentence of 246 months pursuant to the
federal sentencing guidelines and also stated that, if the guidelines
should later be held to be non-binding or unconstitutional, it
would impose the same sentence under 18 U.S.C.A. § 3553 (West 2000
& Supp. 2006). Evans appeals his sentence, arguing that, because
the district court accepted sentence enhancements recommended in
the presentence report, his sentence was longer than the maximum
authorized by the facts found by the jury and was thus imposed in
violation of the Sixth Amendment. We affirm.
The probation officer recommended five enhancements under
U.S. Sentencing Guidelines Manual § 2G2.2 (2003). Evans made no
objection to the presentence report, but raised a general Blakely2
objection at the sentencing hearing. The district court noted his
objection, adopted the presentence report, imposed a sentence of
1
The indictment and judgment and commitment order state that
Evans was convicted under 18 U.S.C.A. § 2252(A). We assume § 2252A
was meant.
2
Blakely v. Washington, 542 U.S. 296 (2004).
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246 months imprisonment, and then stated, “Should the sentencing
guidelines be deemed nonbinding or unconstitutional, then I impose
this sentence under 18 United States Code Section 3553.”
Because Evans preserved his Sixth Amendment claim, it is
reviewed for harmless error. United States v. Booker, 543 U.S.
220, 268 (2005). The government bears the burden of showing beyond
a reasonable doubt that the error did not affect the defendant’s
substantial rights. United States v. Mackins, 315 F.3d 399, 405
(4th Cir. 2003).
Even if the grand jury’s special findings attached to the
superseding indictment authorized the enhancements under
§ 2G2.2(b)(1), (b)(2)(B), (b)(3), and (b)(5), the jury verdict did
not authorize the enhancement under § 2G2.2(b)(6)(D) for over 600
images or the obstruction of justice adjustment. Therefore, the
parties are correct that Sixth Amendment error occurred. However,
because the district court stated that it would impose an identical
alternative sentence under § 3553 if the guidelines were determined
to be non-binding or unconstitutional, the government has met its
burden of showing that the Sixth Amendment error was harmless.
United States v. Shatley, 448 F.3d 264, 267 (4th Cir. 2006). The
district court followed this court’s recommendation in United
States v. Hammoud, 381 F.3d 316 (4th Cir. 2004), vacated, 543 U.S.
1097 (2005), the alternative sentence was within the range
recommended by the sentencing guidelines, and this court takes the
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district court at its word when it states that it would impose the
same sentence under an advisory guidelines system. Shatley, 448
F.3d at 268.
We therefore affirm the sentence imposed by 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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