UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-5172
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
WILLIAM HARRIS TAFT, JR.,
Defendant – Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Graham C. Mullen,
Senior District Judge. (3:03-cr-00208)
Argued: September 25, 2008 Decided: November 17, 2008
Before WILKINSON, MICHAEL, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
ARGUED: Alton Larue Gwaltney, III, MOORE & VAN ALLEN, Charlotte,
North Carolina, for Appellant. Amy Elizabeth Ray, OFFICE OF THE
UNITED STATES ATTORNEY, Asheville, North Carolina, for Appellee.
ON BRIEF: Gretchen C. F. Shappert, United States Attorney,
Charlotte, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
William Harris Taft, Jr. pled guilty to one count of
conspiracy to defraud the United States, in violation of 18
U.S.C. § 371. He now appeals his 41-month sentence imposed upon
remand for resentencing pursuant to United States v. Booker, 543
U.S. 220 (2005). For the following reasons, we affirm.
Taft’s primary argument is that the district court applied
the Sentencing Guidelines in a mandatory fashion by giving a
presumption of reasonableness to the Guidelines range in
violation of Booker. 1 In Rita v. United States, 127 S. Ct 2456,
2465 (2007), which had not yet been decided at the time of
sentencing, the Supreme Court limited application of the
reasonableness presumption to appellate review and explicitly
stated that “the sentencing court does not enjoy the benefit of
a legal presumption that the Guidelines sentence should apply.”
Taft filed written objections prior to sentencing, which he
later referenced at the hearing. In his written objections,
Taft objected to our post-Booker sentencing scheme. However,
Taft did not explicitly object to any application of a district
court presumption of reasonableness to the Guidelines range.
1
Taft also contends that his sentence violates the Sixth
Amendment because it is based on facts not found by a jury and
is unreasonable. We have reviewed the record and find no merit
to these contentions.
2
Subsequently, when the district court noted a presumption of
reasonableness twice during the hearing, Taft failed to
explicitly object on these grounds either time. Because Taft
did not properly object to the presumption, we review his
sentence for plain error. See United States v. Olano, 507 U.S.
725 (1993). 2
To establish plain error, Taft must show that an error
occurred, that the error was plain, and that the error affected
his substantial rights. Id. at 732-34. Even if Taft makes this
three-part showing, correction of the error remains within our
discretion, which we should not exercise unless the error
“‘seriously affect[s] the fairness, integrity or public
reputation of [the] judicial proceedings.’” Id. at 736 (internal
citations omitted).
Our review of the record leads us to conclude there was
error. See Rita, 127 S. Ct at 2465. The error is also plain.
See Johnson v. United States, 520 U.S. 461, 468 (1997) (holding
that “in a case. . .where the law at the time of trial was
settled and clearly contrary to the law at the time of appeal —
2
Plain error is appropriate in reviewing post-Booker
sentencing appeals. See United States v. White, 405 F.3d 208,
217 (4th Cir. 2005). Moreover, at least one other circuit court
has applied plain error analysis to an argument similar to the
one Taft presents (i.e., the district court’s application of a
reasonableness presumption to a Guideline sentence). See United
States v. Howe, 538 F.3d 842, 857 (8th Cir. 2008).
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it is enough that an error be ‘plain’ at the time of appellate
consideration”).
We must now determine whether Taft has shown that the plain
error in sentencing affected his substantial rights. Olano, 507
U.S. at 734. In this regard, Taft must demonstrate prejudice —
i.e., the error affected the outcome of the district court
proceedings. Id. In other words, Taft must show that had the
error not occurred, he would have received a less severe
sentence. We find that Taft has failed to make this showing.
At sentencing, the district court noted that it had
considered the § 3553(a) factors. Although the district court
noted a presumption of reasonableness in regard to the
Guidelines, it also explicitly and correctly noted that the
Guidelines were advisory. Further, the district court did not
blindly accept the sentence calculations contained in the PSR.
In fact, the district court, in giving individualized
consideration to Taft, decreased his criminal history category
from II to I. Although the court could have been more precise
in its sentencing comments, it is clear that the court knew the
Guidelines were advisory and that the court gave consideration
to the § 3553(a) factors. It is also clear that the court
fashioned an individualized sentence for Taft. Therefore, Taft
has not persuaded us that his sentence would have been less had
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the district court not erroneously stated there was a
presumption of reasonableness to a Guidelines sentence.
Based on the foregoing, we affirm the district court’s
judgment.
AFFIRMED
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