UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4601
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JERMAINE WALLACE,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. J. Frederick Motz, District Judge. (CR-
03-243-JFM)
Submitted: March 15, 2006 Decided: November 2, 2006
Before WILKINSON, TRAXLER, and DUNCAN, Circuit Judges.
Affirmed in part, vacated in part, and remanded by unpublished per
curiam opinion.
David B. Irwin, IRWIN GREEN & DEXTER, L.L.P., Towson, Maryland, for
Appellant. Rod J. Rosenstein, United States Attorney, Angela R.
White, Assistant United States Attorney, Baltimore, Maryland, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Jermaine Wallace pled guilty, pursuant to a written plea
agreement, to conspiracy to distribute and possess with the intent
to distribute cocaine base and cocaine hydrochloride, in violation
of 21 U.S.C. §§ 841, 846(b)(1)(A)(ii), (b)(1)(A)(iii) (2000).
After determining that the criminal history category assigned by
the probation officer to Wallace over-represented the seriousness
of Wallace’s past crimes, the district court departed downward from
the applicable federal sentencing guideline range pursuant to U.S.
Sentencing Guidelines Manual § 4A1.3(b) (2003), and sentenced
Wallace to 188 months’ imprisonment, at the bottom of the newly-
calculated range. Citing United States v. Booker, 543 U.S. 220
(2005), Wallace asserts on appeal that the district court erred in
sentencing him under the mandatory guidelines regime that was in
place at the time of his sentencing, and has filed a motion to
remand his case for resentencing. Wallace does not challenge his
conviction.
Wallace’s claim on appeal lies in the fact that he was
sentenced under a mandatory guidelines regime in violation of
Booker,1 which claim we review for plain error, as Wallace did not
object in the district court to his sentence on the basis of the
mandatory application of the guidelines. United States v. White,
1
He concedes that his sentence was not enhanced by the
district court in contravention of his Sixth Amendment rights.
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405 F.3d 208, 223 (4th Cir.), cert. denied, 126 S. Ct. 669 (2005).
Because the district court in this case applied the guidelines in
a mandatory fashion when it sentenced Wallace, it committed legal
error. Id. at 216-17 & n.7. However, prejudice is not presumed,
and the burden is on Wallace to demonstrate that the error affected
his substantial rights. United States v. Olano, 507 U.S. 725, 731-
32 (1993); United States v. Hughes, 401 F.3d 540, 547-48 (4th Cir.
2005). In determining whether the error affected the outcome of
the district court proceedings, the court must consider, “[W]hether
‘after pondering all that happened without stripping the erroneous
action from the whole, . . . the judgment was . . . substantially
swayed by the error.’” White, 405 F.3d at 223 (citations and
footnotes omitted). To make this showing, a defendant must
“demonstrate, based on the record, that the treatment of the
guidelines as mandatory caused the district court to impose a
longer sentence than it otherwise would have imposed.” Id. at 224.
In this case, Wallace has indeed asserted that the
district court would have sentenced him differently had the
district court been able to sentence him under an advisory, rather
then mandatory, guidelines scheme, citing to various statements
made by the district court at sentencing. Specifically, with
regard to the application of criminal history points on Wallace’s
simple drug possession charge when he was seventeen years old, the
district court commented as follows:
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This isn’t a place to engage in psychology or sociology.
But if that is all true, it certainly is pretty rough to
be having the kind of consequences under the guidelines
upon the sentences here from offenses committed when
people are 17 years old. It really is. It really is
just rather draconian.
In addition, recognizing the then-mandatory nature of the
guidelines and their constraints on its discretion, the district
court later stated, “the guidelines are the guidelines.” Following
its determination that a criminal history category of III over-
represented the seriousness of Wallace’s criminal history, and
departure downward to a criminal history category of II,2 the
district court commented, “I’m not going down as far as, though,
frankly, I would like to, . . . to a criminal history category one
because I think it would be unprincipled, I think that the
background here, it is what it is. It might be lighter within
Baltimore City but that’s not the issue. And I think, as I say, it
would be unprincipled. Even though my heart would like to take
that argument, I don’t think I can do it.” While it would appear
that while the district court may not have dropped Wallace’s
sentence as far as a criminal history category I, it may have
sentenced Wallace to a somewhat lower sentence than the bottom of
the guideline range applicable to a criminal history category II,
had it possessed the discretion at the time to do so.3 Given the
2
With an attendant guideline range of 188 to 235 months.
3
We of course offer no criticism of the district judge, who
followed the law and procedure in effect at the time of [Wallace’s]
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district court’s stated discomfort with and multiple referrals to
the mandatory nature of the guidelines, we find it prudent to
remand this case to the district court for reconsideration of
Wallace’s sentence pursuant to an advisory sentencing scheme.4
Accordingly, while we affirm Wallace’s conviction, we
grant his motion to remand, vacate his sentence, and remand for
resentencing in light of Booker. 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
sentencing.” Hughes, 401 F.3d at 545 n.4.
4
Post-Booker, courts must calculate the appropriate guideline
range, consider the range in conjunction with other relevant
factors under the guidelines and 18 U.S.C.A. § 3553(a) (West 2000
& Supp. 2005), and impose a sentence. If a court imposes a
sentence outside the guideline range, it must state its reasons for
doing so. Hughes, 401 F.3d at 546.
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