UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 03-4967
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
EDWARD VENEZ SHIPMAN,
Defendant - Appellant.
On Remand from the Supreme Court of the United States.
(S. Ct. No. 04-7409)
Submitted: July 31, 2006 Decided: September 22, 2006
Before WILLIAMS, TRAXLER, and DUNCAN, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
Thomas P. McNamara, Federal Public Defender, Raleigh, North
Carolina, for Appellant. Frank D. Whitney, United States Attorney,
Anne M. Hayes, Christine Witcover Dean, Assistant United States
Attorneys, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Edward Venez Shipman (“Shipman”) pled guilty to
possession of a firearm by a convicted felon, 18 U.S.C. § 922(g)(1)
(2000), and was sentenced to a term of eighty-four months of
imprisonment. We affirmed his sentence. Subsequently, the Supreme
Court granted certiorari, vacated this court’s judgment in light of
the decision in United States v. Booker, 543 U.S. 220 (2005), and
remanded his case for further proceedings. United States v.
Shipman, 107 F. App’x 354 (4th Cir. 2004) (No. 03-4967), vacated,
543 U.S. 1114 (2005).
Shipman was sentenced before the decisions in Booker and
its predecessor, Blakely v. Washington, 592 U.S. 296 (2004), and he
did not raise objections to his sentence based on the mandatory
nature of the sentencing guidelines or the district court’s
application of sentencing enhancements based on judicial fact
finding rather than facts he admitted. Therefore, we review his
sentence for plain error. United States v. Hughes, 401 F.3d 540,
546-60 (4th Cir. 2005). Shipman now contends that the district
court plainly erred under Booker in applying the guidelines as
mandatory and in enhancing his sentence for possession of the
firearm in connection with another felony because the enhancement
violated the Sixth Amendment. With respect to the district court’s
mandatory application of the guidelines, the court gave no
indication of what sentence it would impose under an advisory
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guideline system. Therefore, Shipman cannot show actual prejudice
and resentencing is not authorized on this ground, independent of
a Sixth Amendment error. United States v. White, 405 F.3d 208,
223-24 (4th Cir. 2005). However, we conclude that the sentence
violated the Sixth Amendment.
Shipman’s base offense level was 20, pursuant to U.S.
Sentencing Guidelines Manual § 2K2.1(a)(4)(A) (2003). He received
a four-level increase under § 2K2.1(b)(5), upon the district
court’s finding that he intended to distribute the marijuana he
possessed when he was arrested with the illegal firearm. Shipman
contested this enhancement, arguing that the evidence did not show
an intent to distribute, but the district court overruled his
objection. Shipman also received a three-level adjustment for
acceptance of responsibility. His final offense level was 21.
Shipman was in criminal history category V, which gave him a
guideline range of 70-87 months. The court imposed a sentence of
eighty-four months. Without the enhancement for possession of the
gun in connection with another felony, Shipman’s offense level
would have been 20 and the guideline range, based on facts he
admitted, would have been 63-78 months.1 Shipman’s sentence of
1
For purposes of determining Booker error, we consider the
guideline range based on facts Shipman admitted before the
reduction for acceptance of responsibility. United States v.
Evans, 416 F.3d 298, 300 n.4 (4th Cir. 2005).
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eighty-four months thus meets the standard for plain error that
must be recognized under the standard set out in Hughes.2
The government asserts that the enhancement was supported
by Shipman’s admission (through his guilty plea) that he possessed
the firearm while in possession of marijuana, because simple
possession of marijuana after any prior drug conviction is a
federal felony offense. See 21 U.S.C. § 844(a) (2000). Shipman
was convicted of simple possession of marijuana in 2001. In our
prior per curiam opinion affirming Shipman’s sentence, we agreed
that this fact could provide an alternative ground for affirmance.
However, in light of Booker, we must take note of the fact that
Shipman did not admit he possessed the firearm “in connection with”
his possession of the marijuana. See United States v. Milam, 443
F.3d 382, 387 (4th Cir. 2006) (holding that, for Booker purposes,
defendant’s silence in response to presentence report does not
constitute admission of facts in report on which sentence
enhancement is based). We therefore conclude that resentencing is
necessary.
For the reasons discussed, we vacate the sentence and
remand for resentencing. Although the sentencing guidelines are no
2
Just 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 Shipman’s sentencing.” Hughes,
401 F.3d at 545 n.4. See generally Johnson v. United States, 520
U.S. 461, 468 (1997) (stating that 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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longer mandatory, Booker makes clear that a sentencing court must
still “consult [the] Guidelines and take them into account when
sentencing.” 543 U.S. at 265. 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. 2006), 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.A. § 3553(c)(2) (West Supp. 2006). Id. 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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