UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4090
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ROCKY ALAN VANBUREN,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Newport News. Henry Coke Morgan, Jr.,
Senior District Judge. (4:98-cr-00023-HCM))
Submitted: July 25, 2007 Decided: August 8, 2007
Before MICHAEL and KING, Circuit Judges, and WILKINS, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Nathaniel Jarrett Webb, III, Newport News, Virginia, for Appellant.
Chuck Rosenberg, United States Attorney, Richard D. Cooke, William
D. Muhr, Assistant United States Attorneys, Tiffany T. Crawford,
Third Year Law Student, Norfolk, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Rocky Alan VanBuren was convicted in 1998 by a jury for
possession with intent to distribute more than fifty grams of
cocaine base, in violation of 21 U.S.C. § 841(a)(1) (2000). He was
sentenced to 168 months of imprisonment. In 2005, VanBuren filed
a post-judgment motion alleging, inter alia, that counsel had been
ineffective in failing to file a timely notice of appeal as
requested. The court granted relief on this ground under 28 U.S.C.
§ 2255 (2000), vacated VanBuren’s sentence, and imposed the same
sentence in the judgment order, thereby allowing VanBuren an
opportunity to file a timely notice of appeal. On appeal, VanBuren
argues that his sentence violates United States v. Booker, 543 U.S.
220 (2005), that his counsel was ineffective, and that the district
court abused its discretion in limiting defense counsel’s cross-
examination of one of the Government’s witnesses. We affirm.
On appeal, VanBuren maintains that his post-Booker
sentence is unreasonable. Specifically, he claims that the
district court, in granting post-conviction relief, violated Booker
by imposing the same sentence without conducting a hearing,
treating the sentencing guidelines as advisory, and considering the
factors enumerated in 18 U.S.C.A. § 3553(a) (West 2000 & Supp.
2007), as required under Booker. VanBuren also posits a different
but related argument claiming that his pre-Booker sentence is
unreasonable because the court treated the guidelines as mandatory
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and failed to adequately consider the factors under § 3553(a).
Although VanBuren predominantly challenges his sentence on
reasonableness grounds, he briefly asserts a Sixth Amendment
argument.
After Booker, a district court is no longer bound by the
range prescribed by the Sentencing Guidelines. United States v.
Hughes, 401 F.3d 540, 546 (4th Cir. 2005). However, in imposing a
sentence post-Booker, courts still must calculate the applicable
Guidelines range after making the appropriate findings of fact and
consider the range in conjunction with other relevant factors under
the Guidelines and § 3553(a). United States v. Moreland, 437 F.3d
424, 432 (4th Cir.), cert. denied, 126 S. Ct. 2054 (2006). This
court will affirm a post-Booker sentence if it “is within the
statutorily prescribed range and is reasonable.” Id. at 433
(internal quotation marks and citation omitted).
As a threshold matter, VanBuren improperly treats the
district court’s reentry of judgment as substantive proceedings
subject to challenge under Booker. Clearly, the district court
vacated VanBuren’s sentence and reimposed the same sentence in
order to reinstate his direct appeal rights. Because VanBuren was
effectively sentenced pre-Booker, the reasonableness standard of
review is inapplicable. See United States v. Hadden, 475 F.3d 652,
667-69 (4th Cir. 2007) (holding that a court is free to merely
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“correct” a prisoner’s sentence without the need for a formal
resentencing).
In reviewing VanBuren’s 1998 sentencing proceedings on
constitutional and statutory grounds under Booker, because he made
no objection to his sentence calculation in the district court, the
claims are reviewed for plain error. United States v. Olano, 507
U.S. 725, 732-37 (1993); Hughes, 401 F.3d at 547-48. Under the
plain error standard, VanBuren must show: (1) there was error; (2)
the error was plain; and (3) the error affected his substantial
rights. Olano, 507 U.S. at 732-34. Even when these conditions are
satisfied, this court may exercise its discretion to notice the
error only if the error “seriously affect[s] the fairness,
integrity or public reputation of judicial proceedings.” Id. at
736 (internal quotation marks omitted).
Here, the indictment specifically charged VanBuren with
possession with intent to distribute in excess of fifty grams of
cocaine base. His offense level was determined solely by the
guideline dictating an offense level of thirty-two if the defendant
was responsible for at least fifty grams but less than 150 grams of
cocaine base, see U.S. Sentencing Guidelines Manual § 2D1.1(c)(4)
(1997). No enhancements were made to VanBuren’s sentence. Because
the court made no findings that increased VanBuren’s sentence
beyond what it would be based only on facts found by the jury, no
Sixth Amendment violation occurred.
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Nor can VanBuren demonstrate any prejudice from the
mandatory application of the Guidelines. In United States v.
White, 405 F.3d 208 (4th Cir. 2005), this court determined that,
“even in the absence of a Sixth Amendment violation, the imposition
of a sentence under the former mandatory guidelines regime rather
than under the advisory regime outlined in Booker is error” that is
plain. Id. at 216-17. The court also concluded that, to satisfy
the third prong of the plain error test, an appellant must
demonstrate actual prejudice. Id. at 217-24. White could not
satisfy this requirement, however, because he could not establish
that the application of the Guidelines as mandatory had an effect
on “‘the district court’s selection of the sentence imposed.’” Id.
at 223 (quoting Williams v. United States, 503 U.S. 193, 203
(1992)). In this case, the record does not reveal any
nonspeculative basis to indicate that the district court would have
imposed a lesser sentence by treating the Guidelines as advisory.
VanBuren therefore cannot demonstrate that the district court’s
error in sentencing him pursuant to a mandatory guidelines scheme
affected his substantial rights.
VanBuren also alleges on appeal that counsel was
ineffective in (1) failing to pursue a guilty plea which would have
resulted in a three-point reduction for acceptance of
responsibility; (2) failing to present evidence controverting the
Government’s allegations; (3) failing to contest the results of the
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laboratory report; and (4) compelling VanBuren to become a witness
against himself. This court “may address [claims of ineffective
assistance of counsel] on direct appeal only if the lawyer’s
ineffectiveness conclusively appears from the record.” United
States v. Baldovinos, 434 F.3d 233, 239 (4th Cir.), cert. denied,
126 S. Ct. 1407 (2006). Because we find that ineffective
assistance of counsel does not conclusively appear on the record,
we do not address these claims.
Last, VanBuren argues that the district court erred in
limiting cross-examination of the Government’s chain-of-custody
witness concerning the witness’s placement on administrative leave.
This court reviews evidentiary rulings for an abuse of discretion.
United States v. Cooper, 482 F.3d 658, 662-63 (4th Cir. 2007). We
have reviewed the record and find no abuse of discretion.
Accordingly, we affirm VanBuren’s conviction and
sentence. 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.
AFFIRMED
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