UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4011
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ROBERT ALTON HARRIS,
Defendant - Appellant.
On Remand from the Supreme Court of the United States.
(S. Ct. No. 04-7182)
Submitted: October 21, 2005 Decided: November 21, 2006
Before TRAXLER and GREGORY, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Vacated and remanded by unpublished per curiam opinion.
Andrew J. Katz, THE KATZ WORKING FAMILIES’ LAW FIRM, L.C.,
Charleston, West Virginia, for Appellant. Charles T. Miller,
Acting United States Attorney, Stephanie L. Haines, Assistant
United States Attorney, Huntington, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Robert Alton Harris appeals the forty-one month sentence
imposed following a guilty plea for sending a threatening
communication to his now ex-wife through the United States mail, in
violation of 18 U.S.C. § 876 (2000). Harris initially appealed his
sentence on January 6, 2004; this court affirmed. See United
States v. Harris, No. 04-4011 (4th Cir. July 30, 2004)
(unpublished). The United States Supreme Court granted certiorari,
vacated this court’s decision, and remanded for further proceedings
in light of United States v. Booker, 543 U.S. 220 (2005). The
parties were directed to file supplemental briefs addressing the
impact of Booker and its progeny upon the validity of Harris’
sentence.
Harris now claims his sentence was imposed in violation
of Booker. Because Harris raised his Booker challenge for the
first time on appeal, we review for plain error. See United States
v. Hughes, 401 F.3d 540, 547 (4th Cir. 2005). As set forth in
United States v. Olano, 507 U.S. 725, 732 (1993), plain error is
present if: (1) there was error; (2) it was plain; and (3) it
affected the defendant's substantial rights. If these conditions
are met, we may then exercise our discretion to notice the error,
but only if it “seriously affects the fairness, integrity or public
reputation of judicial proceedings.” Id. (internal quotation marks
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and alterations omitted). In light of Booker, we find plain error
under Olano in regard to Harris’ sentence.
First, Harris contends that the district court committed
non-constitutional error by treating the guidelines as mandatory,
rather than advisory, as Booker requires. Although we held in
United States v. White, 405 F.3d 208, 216-17 (4th Cir.), cert.
denied, 126 S. Ct. 668 (2005), that treating the guidelines as
mandatory constitutes plain error, our review of the record
convinces us that there is no nonspeculative basis on which we
could conclude that the district court would have sentenced Harris
to a lower sentence had the court proceeded under an advisory
guidelines scheme. See id. at 225. Thus, Harris fails to
demonstrate that the plain error in sentencing him under a
mandatory sentencing guidelines scheme affected his substantial
rights.
Second, Harris contends that the district court sentenced
him in violation of the Sixth Amendment because the court applied
a two-level enhancement under U.S. Sentencing Guidelines Manual
(“USSG”) § 2A6.1(b)(2) (2003), based upon the court’s conclusion
that Harris wrote at least five letters that contained threats
against the victim or her family. Although Harris’ Sixth Amendment
contention was foreclosed by our precedent at the time of his
sentencing, Booker has since “abrogated our previously settled
law,” rendering the error plain. Hughes, 401 F.3d at 548. Third,
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the error was prejudicial, in that Harris’ forty-one month sentence
was greater than the thirty-three month maximum authorized by the
facts to which Harris pled guilty. Id. at 548-49.
To affirm Harris’ sentence despite the error would
seriously affect the fairness, integrity, or public reputation of
these judicial proceedings. In the wake of Booker, the Guidelines
are to be treated as advisory (rather than mandatory), and
sentences that fall within the statutorily prescribed range are
reviewable only for reasonableness. Id. at 546 (citing Booker, 543
U.S. at 244). The record before us does not indicate what sentence
the court would have imposed on Harris had it exercised discretion
under 18 U.S.C. § 3553(a) and treated the Guidelines as merely
advisory. Although it is possible that Harris will receive the
same sentence on remand, “[t]his possibility is not enough to
dissuade us from noticing the error.” Hughes, 401 F.3d at 556.
Finally, in his initial appeal, Harris contended that the
district court clearly erred in denying his request for a downward
sentencing adjustment for acceptance of responsibility, pursuant to
USSG § 3E1.1. Harris also requested a remand to the district court
for a new sentencing hearing based on a violation of Brady v.
Maryland, 373 U.S. 83 (1963).
A district court’s determination as to the defendant’s
acceptance of responsibility is a factual question reviewed for
clear error. United States v. Ruhe, 191 F.3d 376, 388 (4th Cir.
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1999). The burden is on the defendant to establish by a
preponderance of the evidence that he is entitled to the
adjustment. United States v. Urrego-Linares, 879 F.2d 1234, 1238-
39 (4th Cir. 1989). A guilty plea does not automatically entitle
a defendant to a reduction for acceptance of responsibility. See
USSG § 3E1.1, comment. (n.3). A defendant may not be entitled to
a sentencing adjustment for acceptance of responsibility if the
defendant engages in conduct inconsistent with acceptance of
responsibility. Id. Although Harris admitted that he sent a
threatening communication to his wife, two witnesses testified that
Harris made additional threats against his wife and others involved
in his case even after he pled guilty. Thus, the district court
did not clearly err in concluding that Harris’ conduct after he
pled guilty was inconsistent with acceptance of responsibility.
Further, we find no Brady violation.
Accordingly, while we do not disturb Harris’ conviction,
we vacate Harris’ sentence and remand for resentencing consistent
with Booker and its progeny. 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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