UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4497
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
SHONTE L. DAVIS,
Defendant - Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Charleston. John T. Copenhaver, Jr.,
District Judge. (2:03-cr-00238)
Submitted: October 27, 2006 Decided: November 13, 2006
Before WILKINSON, NIEMEYER, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Carl J. Dascoli, Jr., MICHAEL R. CLINE LAW OFFICES, Charleston,
West Virginia, for Appellant. Charles T. Miller, United States
Attorney, W. Chad Noel, 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Unpublished opinions are not binding precedent in this circuit.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:
Shonte L. Davis pled guilty to distributing cocaine base,
in violation of 21 U.S.C. § 841(a)(1) (2000). He was sentenced to
108 months’ imprisonment. This sentence was imposed prior to the
Supreme Court’s opinion in United States v. Booker, 543 U.S. 220
(2005). The district court granted Davis’ 28 U.S.C. § 2255 (2000)
motion, in which Davis claimed his trial counsel failed to file a
notice of appeal despite instructions to do so. Vacating the
original criminal judgment, the district court noted “the sentence
heretofore imposed is in all respects the same sentence the court
would have imposed in light of [Booker] and the factors specified”
in Booker. The court then reentered judgment, imposing an
identical term of 108 months’ imprisonment, at the top of the
sentencing guidelines range. Davis appealed, contending the
reentry of judgment violated Booker because it deprived him of the
opportunity to be sentenced under an advisory sentencing guidelines
regime. We affirm.
Under Booker, when a defendant is sentenced under a
mandatory guidelines scheme, “[a]ny 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 a
jury beyond a reasonable doubt.” Booker, 543 U.S. at 224. Thus,
error under the Sixth Amendment occurs when the district court
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imposes a sentence greater than the maximum permitted based on
facts found by a jury or admitted by the defendant. Id.
Subsequently, in United States v. Hughes, 401 F.3d 540 (4th Cir.
2005), we held that a sentence that was imposed under the
pre-Booker mandatory sentencing scheme and was enhanced based on
facts found by the court, not found by a jury or admitted by the
defendant, constitutes plain error. That error affects the
defendant’s substantial rights and warrants reversal under Booker
when the record does not disclose what discretionary sentence the
district court would have imposed under an advisory guideline
scheme. Hughes, 401 F.3d at 546-56.
In this case, the district court’s post-Booker reentry of
judgment clearly indicates what sentence it would have imposed
under an advisory guideline scheme. Although we detect no Sixth
Amendment error at Davis’ original, pre-Booker sentencing, any such
error was harmless. See United States v. Shatley, 448 F.3d 264,
267 (4th Cir. 2006), cert. denied, ___ U.S. ___, 2006 WL 2378138
(U.S. Oct. 2, 2006) (No. 06-227). Further, the district court is
presumed to have properly considered the 18 U.S.C.A § 3553(a) (West
2000 & Supp. 2005) sentencing factors, as required by Hughes,
United States v. Green, 436 F.3d 449 (4th Cir.), cert. denied, 126
S. Ct. 2309 (2006), and United States v. Moreland, 437 F.3d 424
(4th Cir.), cert. denied, 126 S. Ct. 2054 (2006). See Shatley, 448
F.3d at 268.
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Davis’ sentence, which is below the statutory maximum and
within the properly calculated guidelines range, “is presumptively
reasonable.” See Green, 436 F.3d at 457 (citations omitted).
Accordingly, we affirm Davis’ sentence. 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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