UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4077
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JAMES PHILLIP BOOHER,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Abingdon. James P. Jones, Chief District
Judge. (1:03-cr-00042-jpj)
Submitted: August 29, 2007 Decided: September 25, 2007
Before MICHAEL, MOTZ, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Jay H. Steele, Lebanon, Virginia, for Appellant. John L. Brownlee,
United States Attorney, Jean B. Hudson, Assistant United States
Attorney, Charlottesville, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
James Phillip Booher appeals the eighty-eight-month
sentence he received after he was resentenced under United
States v. Booker, 543 U.S. 220 (2005). Booher was first sentenced
in 2003 to a term of 100 months imprisonment after he pled guilty
to possession of a firearm by a convicted felon, a violation of 18
U.S.C. § 922(g)(1) (2000), and unsuccessfully contested an
adjustment for obstruction of justice under U.S. Sentencing
Guidelines Manual § 3C1.1 (2006). He did not object to an
enhancement for a stolen firearm, USSG § 2K2.1(b)(4). On appeal,
Booher challenged the obstruction of justice adjustment and the
district court’s refusal to award him an adjustment for acceptance
of responsibility. We affirmed the sentence, United States v.
Booher, 94 F. App’x 160 (2004) (No. 03-4788), but the Supreme Court
granted certiorari and remanded the case for further proceedings
under Booker. We subsequently held that the obstruction of justice
adjustment and the stolen gun enhancement each constituted Sixth
Amendment error under Booker because they were based on judicial
fact findings made under a mandatory guideline scheme, and remanded
his case for resentencing. United States v. Booher, 201 F. App’x
139 (4th Cir. 2006) (No. 03-4788).
On remand, Booher contested only the stolen gun
enhancement. An agent of the Bureau of Alcohol, Tobacco, Firearms
and Explosives testified about two reports prepared by the Bristol,
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Virginia, police department after Booher’s arrest. The first
report stated that the firearm was checked through the Federal
Bureau of Investigation’s National Crime Information Center, which
indicated that it had been stolen in Newport, Tennessee. The
second report described the details of the theft received from the
police in Newport.
The district court held that the police reports were
reliable evidence and that the government had proved by a
preponderance of the evidence that the gun was stolen. The court
decided that it was bound by its prior determinations concerning
the guideline range which had been affirmed on appeal because its
only error, under Booker, was the application of the guidelines as
mandatory. The district court also stated that it would make the
same factual findings if it were to revisit those issues. The
court departed below the advisory guideline range of 100-125 months
and imposed a sentence of eighty-eight months imprisonment based on
Booher’s good record in prison and his participation in educational
and vocational programs
In this appeal, Booher contends that the district court
erred by not making a new factual finding concerning obstruction of
justice, and that it relied on unreliable hearsay to find that the
firearm was stolen. Because Booher did not object to the
obstruction of justice adjustment when he was resentenced, the
district court’s readoption of its prior ruling is subject to plain
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error review. Under United States v. Olano, 507 U.S. 725, 732-37
(1993), to establish plain error, a defendant must show that
(1) error occurred; (2) the error was plain; and (3) the error
affected his substantial rights. 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
732 (internal quotation and citation omitted). As the district
court noted, this court affirmed the obstruction of justice
adjustment in Booher’s first appeal. Booher argues that the
district court was obligated to reexamine the issue on remand after
Booker. However, no new evidence was presented and no argument
made to the court on the issue at resentencing. Therefore, we
conclude that the court did not plainly err in adopting its prior
ruling on this issue.
Next, we find no error in the district court’s
consideration of the police reports. In resolving factual
disputes, the sentencing court may consider any relevant
information that “has sufficient indicia of reliability to support
its probable accuracy,” regardless of its admissibility under the
rules of evidence that would apply at trial. USSG § 6A1.3(a). The
test is whether “the factual evidence relied upon . . . [has] some
minimal indicium of reliability beyond mere allegation.” United
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States v. Hicks, 948 F.2d 877, 883 (4th Cir. 1991) (internal
quotation and citation omitted). The police reports met this test.
We therefore affirm the sentence imposed by the district
court. 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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