UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4482
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ROBERT WAYNE BOGGS,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. William L. Osteen, Senior
District Judge. (1:02-cr-00029-WLO)
Submitted: December 19, 2007 Decided: January 8, 2008
Before MOTZ, KING, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Louis C. Allen, III, Federal Public Defender, Eric D. Placke,
Assistant Federal Public Defender, Greensboro, North Carolina, for
Appellant. Anna Mills Wagoner, United States Attorney, Clifton T.
Barrett, Assistant United States Attorney, Greensboro, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Robert Wayne Boggs was convicted of kidnapping,
transmitting a ransom demand in interstate commerce, and carrying
and using a firearm during a crime of violence, in violation of 18
U.S.C. §§ 875(a), 924(c)(1)(A)(ii), 1201(a)(1) (2000), and
originally sentenced to 284 months imprisonment. This court
affirmed Boggs’ conviction, but vacated his sentence and remanded
for resentencing in accordance with United States v. Booker, 543
U.S. 220 (2005).
On remand, the district court conducted a resentencing
hearing and determined that, with regard to the kidnapping and
ransom demand counts, both to run concurrently, Boggs’ total
offense level remained at 35; with a criminal history category I,
the resulting guideline range remained at 168-210 months
imprisonment. After considering the factors set forth in 18
U.S.C.A. § 3553(a) (West 2000 & Supp. 2007), the district court
again sentenced Boggs to 200 months for the kidnapping and ransom
demand counts to run concurrently, for a total term of 284 months
imprisonment.
Boggs appeals, claiming that the district court violated
his Sixth Amendment rights by enhancing his sentence based on
findings made by the court, rather than a jury. Boggs’ claim is
foreclosed by Booker and its progeny. After Booker, a district
court is no longer bound by the range prescribed by the sentencing
- 2 -
guidelines. United States v. Hughes, 401 F.3d 540, 546 (4th Cir.
2005). However, courts still must calculate the applicable
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). Gall v. United States, No. 06-7949,
2007 WL 4292116, at *7 (U.S. Dec. 10, 2007). We will review the
sentence under an abuse-of-discretion standard regardless of
whether the sentence imposed is inside or outside of the guidelines
range. Id.
Under an advisory guidelines scheme, a district court
does not violate the Sixth Amendment by making factual findings as
to sentencing factors by a preponderance of the evidence as long as
the fact-finding does not enhance the sentence beyond the maximum
term specified in the substantive statute. See United States v.
Morris, 429 F.3d 65, 72 (4th Cir. 2005) (holding that “Booker does
not in the end move any decision from judge to jury, or change the
burden of persuasion”).
Therefore, Boggs’ claim is without merit. Accordingly,
we affirm his sentence. We dispense with oral argument because the
facts and legal contentions are adequately addressed in the
materials before the court and argument would not aid the
decisional process.
AFFIRMED
- 3 -