UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 03-4536
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
SUSAN HOUCHINS,
Defendant - Appellant.
No. 03-4537
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
KENNETH WAYNE HALEY,
Defendant - Appellant.
On Remand from the Supreme Court of the United States.
(S. Ct. No. 04-5647)
______________
Submitted: July 28, 2006 Decided: September 22, 2006
Before MOTZ, KING, and GREGORY, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
Mary Lou Newberger, Federal Public Defender, Jonathan D. Byrne,
Appellate Counsel, David R. Bungard, Assistant Federal Public
Defender, Charleston, West Virginia; Sante Boninsegna, Jr.,
BONINSEGNA LAW OFFICE, Princeton, West Virginia, for Appellants.
Charles T. Miller, Acting United States Attorney, Joanne Vella
Kirby, Assistant United States Attorney, Charleston, West Virginia,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
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PER CURIAM:
Susan Houchins and Kenneth Wayne Haley (“Appellants”)
pled guilty in 2003 to conspiracy to manufacture an unspecified
quantity of methamphetamine, 21 U.S.C. § 846 (2000). The district
court sentenced Houchins to seventy months imprisonment and Haley
to eighty-seven months imprisonment. This court affirmed their
sentences. United States v. Houchins, 364 F.3d 182 (4th Cir.
2004), vacated, 543 U.S. 1104 (2005). The Supreme Court
subsequently granted certiorari and remanded their cases for
further proceedings in light of United States v. Booker, 543 U.S.
220 (2005). In supplemental briefs, Appellants assert that the
district court plainly erred by finding facts that increased their
sentences and that the court’s consideration of even essentially
uncontroverted facts to increase the offense level violates the
Sixth Amendment. For the reasons explained below, we vacate
Appellants’ sentences and remand for resentencing consistent with
Booker.
Because Appellants did not previously raise a Sixth
Amendment challenge to their sentences, the standard of review is
plain error. United States v. Hughes, 401 F.3d 540, 547 (4th Cir.
2005). A Sixth Amendment error occurs when the district court
imposes, under a mandatory guideline scheme, a sentence greater
than the maximum permitted based on facts found by a jury or
admitted by the defendant. Booker, 543 U.S. at 547-48.
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In a statement made after his arrest, Haley admitted that
he used 2000 ephedrine pills each time he cooked a batch of
methamphetamine. At their joint guilty plea hearing, Houchins and
Haley admitted responsibility for one ounce of methamphetamine, and
the prosecutor informed the district court that there was no other
relevant conduct. However, extrapolating from Haley’s statement
and witness information indicating that Haley cooked
methamphetamine three times, the probation officer calculated that
he had produced at least 90 grams (more than three ounces) of
methamphetamine. For both Haley and Houchins, the probation
officer recommended a base offense level of 26, USSG § 2D1.1(c)(7)
(50-200 grams of methamphetamine); recommended that they each
receive a three-level enhancement for creating a substantial risk
of harm to the community; and recommended that Haley receive a two-
level adjustment for being a leader in the offense.
Houchins objected to the probation officer’s calculation
of the drug amount because it was based on the use of 60-milligram
ephedrine pills rather than 30-milligram pills, but she withdrew
her objection at sentencing. Haley did not object to either the
drug amount or the leadership role adjustment he received.
Appellants both objected to the substantial risk enhancement, but
the district court overruled their objections.
We first note that, without the contested three-level
enhancement for creating a substantial risk of harm to the
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community, Houchins’s final offense level would have been 26 and
Haley’s final offense level would have been 28. For purposes of
determining Booker error, this court considers the guideline range
based on the facts the defendant admitted before any adjustment for
acceptance of responsibility. United States v. Evans, 416 F.3d
298, 300 n.4 (4th Cir. 2005). Using this calculation, Houchins’s
guideline range would have been unchanged at 70-87 months, and
Haley’s guideline range would have remained at 87-108 months. The
sentences of seventy months for Houchins and eighty-seven months
for Haley were thus within the range that would have applied
without the contested enhancement for creating a substantial risk
of harm to the community.
However, the base offense level of 26 that was used was
higher than the base offense level of 20 that would have applied
had the probation officer used one ounce (28.35 grams) of
methamphetamine, the quantity that Appellants admitted at the
guilty plea hearing. See U.S. Sentencing Guidelines Manual
§ 2D1.1(c)(10) (2002) (20-39 grams of methamphetamine). Had a base
offense level of 20 been used, Houchins’s guideline range would
have been 37-46 months. Even with the leader adjustment, Haley’s
guideline range would have been 46-57 months.
A defendant’s failure to object to the presentence report
does not constitute an admission of facts set forth in the report
for the purposes of Booker, because “[t]o presume, infer, or deem
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a fact admitted because the defendant has remained silent is
contrary to the Sixth Amendment.” United States v. Milam, 443 F.3d
382, 387 (4th Cir. 2006).1 Whether a defendant has admitted a fact
that would otherwise require a jury finding, thus waiving Sixth
Amendment protection for Booker purposes, depends upon where a
defendant’s “verbalizations . . . fall along a spectrum” from
silence to “statements such as ‘I admit,’ or the functional
equivalent thereof.” United States v. Revels, 455 F.3d 448, 450-51
(4th Cir. 2006) (holding that defendant did not admit facts
supporting sentencing enhancement where he lodged Blakely2
objection and replied “No, sir” to court’s inquiry as to “whether
he had objections to anything contained or omitted from the PSR”).
Although Houchins withdrew her objection to the drug
amount at sentencing, and admitted that 60-milligram pills were
used to manufacture the methamphetamine, she did not affirmatively
admit that 90 grams of methamphetamine were produced. To reach
that conclusion, the probation officer consulted a chemist for the
West Virginia State Police Laboratory, estimated that Haley would
have produced about 30 grams of methamphetamine in each batch and
estimated, based on witness information, that Haley cooked
1
Milam distinguishes between factual issues that the
sentencing court must resolve pursuant to Rule 32(i)(3), and
factual issues that, under Booker, may only be resolved by a jury
or the defendant’s admission without running afoul of Sixth
Amendment protections. 443 F.3d at 386.
2
Blakely v. Washington, 542 U.S. 296 (2004).
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methamphetamine three times. However, after his arrest, Haley
stated that he had produced only three grams of methamphetamine in
the previous day’s cook, and there was no specific information in
the presentence report at to how much methamphetamine had been
produced at the other two cooks. Because the calculation that 90
grams of methamphetamine were produced required additional fact
finding, we conclude that Houchins’s limited admission concerning
the strength of the ephedrine pills used does not equate to an
admission concerning the quantity of methamphetamine produced.
A Booker plain error need not be noticed and corrected if
the error was harmless because it did not actually affect the
outcome of the proceedings. United States v. Smith, 441 F.3d 254,
272-73 (4th Cir. 2006) (declining to correct error where evidence
of drug quantity was overwhelming and uncontroverted). In
Houchins’s case, the evidence that Haley manufactured 90 grams of
methamphetamine was uncontroverted at sentencing, but not
overwhelming because the probation officer’s estimation was open to
challenge.
Haley’s statement at the Rule 11 hearing that making
methamphetamine was his idea and he got his two co-defendants
involved constitutes an admission that he was a leader in the
offense. Therefore, we need not notice the Booker error inherent
in the district court’s adoption of the recommended two-level
adjustment. However, Haley made no statement concerning how much
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methamphetamine he produced, beyond admitting that he had made
three grams of methamphetamine the day before his arrest. He did
not object to the 90 grams attributed to him in the presentence
report, but under Milam and Revels, his silence may not be taken as
an admission that he produced 90 grams of methamphetamine. Nor, as
previously discussed, was the Booker error harmless, because the
government cannot show that the constitutional error did not
actually affect the outcome of the proceedings. See Revels, 455
F.3d at 452 (citing United States v. Dominguez Benitez, 542 U.S.
74, 81 & n.7 (2004)). Haley’s eighty-seven-month sentence exceeded
the maximum authorized based on facts he admitted and thus violates
the Sixth Amendment.
We therefore vacate the sentences imposed by the district
court and remand for resentencing consistent with Booker.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.” 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. Hughes, 401
3
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 Appellants’ 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 set and clearly contrary to
the law at the time of appeal.”).
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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 imposing a non-guidelines sentence as
required by 18 U.S.C.A. § 3553(c)(2). 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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