UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4815
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
SHANNON MICHAEL WADE,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. Frank W. Bullock, Jr.,
District Judge. (CR-04-119)
Submitted: December 29, 2006 Decided: January 31, 2007
Before NIEMEYER, WILLIAMS, and SHEDD, Circuit Judges.
Affirmed in part; vacated and remanded in part by unpublished per
curiam opinion.
William S. Trivette, Assistant Federal Public Defender, Greensboro,
North Carolina, for Appellant. Angela H. Miller, Assistant United
States Attorney, Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Shannon Wade appeals his fifty-four month sentence
imposed following his guilty plea to possession of a firearm by a
convicted felon, in violation of 18 U.S.C. § 922(g)(1) (2000).
Wade’s counsel filed a brief pursuant to Anders v. California, 386
U.S. 738 (1967), and the Government elected not to file an
answering brief. Because the Supreme Court decided United States
v. Booker, 543 U.S. 220 (2005), after the parties filed their
briefs, we directed the parties to file supplemental briefs
addressing any issues implicated by Booker. After reviewing the
parties’ briefs and supplemental briefs, we affirm Wade’s
conviction but vacate his sentence and remand for resentencing in
light of Booker.
First, Wade argues that his sentence was unconstitutional
because the district court used Wade’s prior convictions to apply
the recidivism enhancements under U.S. Sentencing Guidelines Manual
(USSG) § 4A1.1(a), (b), (c) (2004), and to calculate his base
offense level under USSG § 2K2.1. Wade did not dispute the fact of
his prior convictions. The fact of a prior conviction need not be
proven beyond a reasonable doubt. Almendarez-Torres v. United
States, 523 U.S. 224, 233-36, 243-44 (1998); United States v.
Cheek, 415 F.3d 349, 351-54 (4th Cir.) (reaffirming continuing
validity of Almendarez-Torres after United States v. Booker, 543
U.S. 220 (2005)), cert. denied, 126 S. Ct. 640 (2005). Thus, the
- 2 -
district court was not required to make any factual findings
concerning Wade’s prior record, but could rely on “the conclusive
significance” of his record, see Shepard v. United States, 544 U.S.
13, 25 (2005), as set out in the presentence report. See United
States v. Thompson, 421 F.3d 278, 285 (4th Cir. 2005) (sentencing
judge entitled to rely on undisputed information in presentence
report that “bears the earmarks of derivation from Shepard-approved
sources such as the indictments and state-court judgments from
[defendant’s] prior convictions”), cert. denied, 126 S. Ct. 1463
(2006). We conclude that the district court did not violate Wade’s
Sixth Amendment rights when it considered his prior convictions in
determining his sentence.
Next, Wade contests the four-level enhancement under USSG
§ 2K2.1(b)(5) for possession of a firearm in connection with
another felony offense, possession with intent to sell and deliver
cocaine, and maintaining a dwelling for keeping a controlled
substance. Wade never admitted to the facts underlying the
enhancement. Rather, these relevant facts were determined by the
probation officer, and adopted by the district court. Because Wade
objected at sentencing based on Blakely v. Washington, 542 U.S. 296
(2004), Wade preserved the constitutional issue. United States v.
Rodriguez, 433 F.3d 411, 415 (4th Cir. 2006).
A Sixth Amendment error occurs when the district court
imposes a sentence greater than the maximum permitted based on
- 3 -
facts found by a jury or admitted by the defendant. Booker, 543
U.S. at 244. To ascertain whether the defendant’s sentence
violated his Sixth Amendment rights post-Booker, this court
considers the defendant’s “guideline range based on the facts he
admitted before adjusting that range for acceptance of
responsibility.” United States v. Evans, 416 F.3d 298, 300 n.4
(4th Cir. 2005). Therefore, under Evans, discounting the
adjustment for acceptance of responsibility, and without the four-
level enhancement for possession of a firearm in connection with
another felony offense, Wade’s offense level is twenty and his
guidelines range would be forty-one to fifty-one months’
imprisonment. Because this range is lower than the sentence
imposed upon Wade, we conclude that there was Sixth Amendment
error, and the error is not harmless.1 In accordance with Anders,
we have reviewed the entire record for any other meritorious issues
and have found none.
Accordingly, we affirm Wade’s conviction, but vacate his
sentence and remand to the district court for resentencing.2 We
1
As we noted in United States v. Hughes, 401 F.3d 540, 545 n.4
(4th Cir. 2005), “[w]e of course offer no criticism of the district
judge, who followed the law and procedure in effect at the time” of
Wade's sentencing.
2
Although the sentencing Guidelines are no longer mandatory,
Booker makes clear that a sentencing court “must consult [the]
Guidelines and take them into account when sentencing” a defendant.
543 U.S. at 264. On remand, the district court should first
determine the appropriate sentencing range under the Guidelines,
making all factual findings appropriate for that determination.
- 4 -
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 AND REMANDED IN PART
See Hughes, 401 F.3d at 546. The court should consider this
sentencing range along with the other factors described in 18
U.S.C.A. § 3553(a) (West 2000 & Supp. 2006), and then impose the
sentence. See Hughes, 401 F.3d at 546. If that sentence falls
outside of the Guideline range, the court should explain its
reasons for the departure as required by 18 U.S.C.A. § 3553(c)(2).
The sentence must be “within the statutorily prescribed range” and
“reasonable.” Id. at 547.
- 5 -