UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4165
UNITED STATES OF AMERICA,
Plaintiff - Appellant,
versus
KEAT SHAUN WINGATE,
Defendant - Appellee.
Appeal from the United States District Court for the District of
South Carolina, at Columbia. Matthew J. Perry, Jr., Senior
District Judge. (3:03-cr-00015-MJP-1)
Submitted: November 30, 2006 Decided: December 28, 2006
Before WIDENER, KING, and SHEDD, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
Reginald I. Lloyd, United States Attorney, Stanley D. Ragsdale,
Assistant United States Attorney, Columbia, South Carolina, for
Appellant. Joshua Snow Kendrick, JOSHUA SNOW KENDRICK, P.C.,
Columbia, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
The United States appeals the 135-month imprisonment
sentence imposed on Keat Shaun Wingate by the district court
following remand for resentencing. Wingate pleaded guilty to one
count of conspiracy to distribute 50 grams or more of cocaine base,
in violation of 21 U.S.C. § 846 (2000). The district court
originally sentenced Wingate to 262 months’ imprisonment, based
upon its mandatory application of the sentencing guidelines, and
its enhancement of Wingate’s base offense level based upon facts
found by a preponderance of the evidence by the court and not
charged in the indictment or admitted by Wingate, in violation of
the Supreme Court’s directive in United States v. Booker, 543 U.S.
220 (2005), which case was decided after the original sentencing,
but before Wingate’s appeal. We affirmed Wingate’s conviction but
vacated his sentence. On remand, the district court sentenced
Wingate to 135 months’ imprisonment, below the applicable mandatory
statutory minimum sentence. The Government appeals, contending as
its sole assertion of error that the district court erred in
sentencing Wingate below the twenty-year statutory mandatory
minimum sentence. We agree.
The decision in Booker did not change the rule that,
absent motion by the Government on the basis of substantial
assistance, judges are not at liberty to depart below an applicable
statutory mandatory minimum sentence, and a mandatory statutory
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limitation must be implemented where applicable. See United States
v. Green, 436 F.3d 449, 455-56 (4th Cir.), cert. denied, 126 S. Ct.
2309 (2006); United States v. Robinson, 404 F.3d 850, 862 (4th
Cir.), cert. denied, 126 S. Ct. 288 (2005). In finding that the
district court correctly determined Wingate’s base offense level,
and directing the district court to resentence Wingate in
accordance with Booker and Hughes,* we did not intend for the
district court to disregard applicable statutory law, including the
twenty-year mandatory minimum sentence applicable to Wingate’s
conviction. See 21 U.S.C. § 841(b)(1)(A) (2000); U.S. Sentencing
Guidelines Manual § 5G1.1 (2004). Accordingly, we vacate Wingate’s
sentence and remand for resentencing. 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
*
See United States v. Hughes, 401 F.3d 540 (4th Cir. 2005).
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