UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4423
UNITED STATES OF AMERICA,
Plaintiff - Appellant,
versus
ROBERT EARL LOWRY,
Defendant - Appellee.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Terrence W. Boyle,
District Judge. (2:02-cr-00013-BO)
Submitted: November 30, 2006 Decided: January 25, 2007
Before WILKINSON, SHEDD, and DUNCAN, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
George E. B. Holding, Acting United States Attorney, Anne M. Hayes,
Christine Witcover Dean, Assistant United States Attorneys,
Raleigh, North Carolina, for Appellant. Kelly L. Greene, STUBBS &
PERDUE, P.A., New Bern, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
The government appeals the sentence imposed on Robert
Earl Lowry after we remanded his case for resentencing in light of
United States v. Booker, 543 U.S. 220 (2005). We agree that the
district court misconstrued our opinion and erred by failing to
make factual findings concerning the drug quantity to be attributed
to Lowry in calculating the advisory guideline range. We therefore
vacate the sentence and remand for resentencing.
Lowry sold crack to a confidential informant twice in
early 2001. The total amount sold was 5.4 grams. About the same
time, Lowry made an unprotected admission to a law enforcement
officer that he sold $12,000 worth of crack (120 grams) for
supplier Gabriel Stitt. In 2002, Lowry was charged with two counts
of crack distribution (Counts One and Three), one count of
possessing a firearm in furtherance of a drug trafficking crime
(Count Two), and one count of being a felon in possession of a
firearm (Count Four). Lowry pled guilty to the felon-in-possession
count, went to trial on the remaining counts, and was convicted.
The indictment did not charge a specific quantity of crack, and the
jury did not make a finding as to the amount of crack involved.
At sentencing, Lowry was held responsible for 125.4 grams
of crack, which gave him a base offense level of 32. He was in
criminal history category II. The guideline range for the drug
offenses was 135-168 months. The range for the felon-in-possession
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count was 120 months, the statutory maximum. Lowry was sentenced
to a term of 168 months on Counts One and Three, a concurrent term
of 120 months on Count Four, and a consecutive term of sixty months
on Count Two. We affirmed the conviction and sentence. United
States v. Lowry, 116 F. App’x 446 (4th Cir. Nov. 22, 2004) (No. 03-
4856).
The Supreme Court later vacated our judgment and remanded
for reconsideration in light of Booker. After reconsidering the
case in light of Booker and United States v. Hughes, 401 F.3d 540
(4th Cir. 2005), we vacated the sentence on Counts One, Three, and
Four, and remanded for resentencing, finding that the sentence was
plainly erroneous because it exceeded the maximum guideline range
that could have applied based on the jury’s verdict that Lowry
distributed an indeterminate quantity of crack. Our opinion
discussed the nature of the Sixth Amendment error at some length,
as well as a possible alternative grouping of the pertinent counts,
before deciding that the error affected Lowry’s substantial rights.
The opinion concluded by remanding Lowry’s case for resentencing
and, citing Booker and Hughes, directed the district court to
“first determine the appropriate sentencing range under the
Guidelines, making all factual findings appropriate for that
determination. . . . [Next] consider this sentencing range along
with the other factors described in 18 U.S.C. § 3553(a) (2000), and
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then impose a sentence.” United States v. Lowry, 164 F. App’x 314,
316 (4th Cir. Jan. 6, 2006) (No. 03-4856).
On remand, the district court was persuaded that our
opinion mandated the use of an offense level that was based on an
indeterminate quantity of crack. This view, put forward by defense
counsel, misconstrued the opinion. In imposing a sentence after
Booker, courts still must calculate the applicable advisory
guideline range after making the appropriate findings of fact and
consider the range in conjunction with other relevant factors under
the guidelines and § 3553(a). Hughes, 401 F.3d at 546; United
States v. Moreland, 437 F.3d 424, 432 (4th Cir.), cert. denied, 126
S. Ct. 2054 (2006). On remand, applying the guidelines as
advisory, the district court was required to determine the
guideline range by making whatever factual findings were necessary,
and was not restricted by the fact that the jury had not been asked
to determine the specific quantity of crack for which Lowry was
responsible for sentencing purposes. The court’s failure to do so,
based on its misinterpretation of this court’s opinion remanding
the case, renders the sentence unreasonable.
We therefore vacate the sentence imposed by the district
court and remand for resentencing. In resentencing Lowry, the
district court should determine the quantity of crack for which
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Lowry is responsible by a preponderance of the evidence* and then
calculate the appropriate advisory guideline range. 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. Revels, 455 F.3d 448, 451 n.2 (4th Cir.)
(standard of review), cert. denied, 127 S. Ct. 299 (2006); United
States v. Morris, 429 F.3d 65, 72 (4th Cir. 2005) (same), cert.
denied, 127 S. Ct. 121 (2006).
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