UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4083
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
WARREN EDWIN MOORE,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Florence. C. Weston Houck, Senior District
Judge. (CR-02-1280)
Submitted: January 31, 2007 Decided: February 15, 2007
Before NIEMEYER and WILLIAMS, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Vacated and remanded by unpublished per curiam opinion.
Christopher J. Moran, Columbia, South Carolina, for Appellant. Rose
Mary Parham, Assistant United States Attorney, Florence, South
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Warren Edwin Moore appeals the sentence imposed after he
pleaded guilty to possession with intent to distribute a quantity
of cocaine, in violation of 18 U.S.C. § 841(a)(1), (b) (2000).
Moore argues on appeal that his sentence violates the Sixth
Amendment right to a jury trial and should be vacated because the
district court’s determination of drug quantity and possession of
a firearm resulted in a sentence that violated his substantial
rights.
In United States v. Booker, 543 U.S. 220 (2005), the
Supreme Court held that Blakely v. Washington, 542 U.S. 296 (2004),
applies to the federal sentencing guidelines and that the mandatory
guidelines scheme, which provided for sentence enhancements based
on facts found by the court by a preponderance of the evidence,
violated the Sixth Amendment. See Booker, 543 U.S. at 226-27, 245.
The Court remedied the constitutional violation by severing and
excising the statutory provisions that mandate sentencing and
appellate review under the guidelines, thus making the guidelines
advisory. 543 U.S. at 245.
Moore was sentenced before Blakely and Booker were
decided. Because he made no objection to his sentence calculation
in the district court, the Sixth Amendment claims he raises on
appeal under Blakely are reviewed for plain error. United
States v. Olano, 507 U.S. 725, 732-37 (1993) (discussing standard);
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United States v. Hughes, 401 F.3d 540, 547-48 (4th Cir. 2005)
(same).
At sentencing, the district court adopted the
recommendation in the presentence report that Moore was responsible
for 77.55 grams of powder cocaine and 40.39 grams of crack cocaine,
resulting in an equivalence of 823.31 kilograms of marijuana. The
superseding indictment does not indicate the quantity of cocaine
related to the count to which Moore pleaded guilty. The indictment
reads “a quantity of cocaine.” (J.A. 10). Nor did Moore admit to
a quantity at his plea hearing. The weapon enhancement requires a
finding that the firearm was present during the drug offense and
that it was not clearly improbable that the firearm was connected
to the drug offense. USSG § 2D1.1, comment. (n.3). Therefore, the
district court’s adoption of the drug quantity used to establish
Moore’s base offense level under § 2D1.1 and the weapon enhancement
pursuant to § 2D1.1(b)(1) violates the Sixth Amendment under Booker
because each requires a factual finding that goes beyond that
admitted by Moore.
Had the district court counted only the lowest level for
quantity of cocaine and eliminated the weapon enhancement, the
offense level for Count Two would be 12, see USSG § 2D1.1(c)(14)
(less than 25 grams of cocaine). Moore had six criminal history
points, which placed him in category III. His guidelines range
would be 15-21 months. Moore’s 108-month sentence thus exceeds the
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maximum sentence permitted based on facts established by the guilty
plea.
The Government first argues that Moore has waived his
right to challenge his sentence because Moore acknowledged in his
plea agreement that his sentence would be imposed in conformity
with the Sentencing Guidelines. Because this court has not held
that an understanding that a sentence would be imposed in a
particular manner constitutes a waiver of appeal rights, we reject
the Government’s argument. See United States v. Hamdi, 432 F.3d
115, 122-24 (2d Cir. 2005) (an agreement to be sentenced under the
Guidelines did not waive the right to appeal the sentence).
The Government also argues that Moore has failed to
object to the district court’s findings and thus any error would be
harmless. However, Moore’s failure to object to the presentence
report does not amount to an admission of the facts set out in the
report. United States v. Milam, 443 F.3d 382, 387-88 (4th Cir.
2006). Moore made no admissions. He did not stipulate to facts
regarding drug quantity or firearm possession at the guilty plea
hearing, the indictment did not specify a quantity of cocaine, and
his withdrawal of his objections at sentencing did not constitute
an admission. See id.
Because Moore has established plain error, we vacate his
sentence and remand for resentencing consistent with Booker and
Hughes. We dispense with oral argument because the facts and legal
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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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