Filed: February 12, 2009
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 02-4908
(CR-01-627)
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JOHNNY LEE GORE, a/k/a Manager,
Defendant - Appellant.
O R D E R
The court amends its opinion filed November 7, 2008, as
follows:
On page 3, second line of opinion text, the phrase “multiple
controlled substances” is deleted and replaced with the word
“cocaine.”
For the Court - By Direction
/s/ Patricia S. Connor
Clerk
ON REHEARING
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 02-4908
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JOHNNY LEE GORE, a/k/a Manager,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Florence. C. Weston Houck, Senior District
Judge. (CR-01-627)
Submitted: August 7, 2008 Decided: November 7, 2008
Before KING, GREGORY, and DUNCAN, Circuit Judges.
Affirmed in part; vacated and remanded in part by unpublished per
curiam opinion.
James Arthur Brown, Jr., LAW OFFICES OF JIM BROWN, PA, Beaufort,
South Carolina; Michael S. Seekings, LEATH, BOUCH & CRAWFORD, LLP,
Charleston, South Carolina, for Appellant. Thomas Ernest Booth,
UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.; Robert
Claude Jendron, Jr., OFFICE OF THE UNITED STATES ATTORNEY,
Columbia, South Carolina; Rose Mary Sheppard Parham, Assistant
United States Attorney, Florence, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Johnny Lee Gore was convicted by a jury of conspiracy to
possess with intent to distribute cocaine in violation of 21 U.S.C.
§ 841(a)(1) (2000). Gore was sentenced to 360 months’
imprisonment. On direct appeal, we affirmed. See United States v.
Gore, 102 F. App’x 292 (4th Cir. 2004) (unpublished). We also
denied Gore’s motion for permission to file a pro se supplemental
brief in light of Apprendi v. New Jersey, 530 U.S. 466 (2000).
Following its decision in United States v. Booker, 543 U.S. 220
(2005), the Supreme Court of the United States vacated the judgment
and remanded the case to this court for further consideration. See
Gore v. United States, 543 U.S. 1181 (2005).
On remand, we vacated Gore’s sentence and remanded for
further proceedings in light of Booker. See United States v. Gore,
195 F. App’x 145 (2006) (unpublished).* In the unpublished
opinion, we found that while resentencing was required owing to
statutory Booker error at the original sentencing, see United
States v. White, 405 F.3d 208, 216-17 (4th Cir. 2005), no Sixth
Amendment error occurred because Gore was a career offender.
In August 2007, we granted Gore’s petition for rehearing,
in which he contended the career offender finding was erroneous.
*
In the same unpublished opinion, we also vacated the sentence
and remanded for resentencing in light of Booker in the case of
Gore’s co-appellant, Vander Moore Gore. The portion of the opinion
pertaining to Vander Moore Gore remains unaffected.
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Therefore, although we again vacate Gore’s sentence and remand the
case for resentencing, we do so for an additional reason.
In Booker, the Supreme Court held that when a defendant
is sentenced under a mandatory guidelines scheme, “[a]ny fact
(other than a prior conviction) which is necessary to support a
sentence exceeding the maximum authorized by the facts established
by a plea of guilty or a jury verdict must be admitted by the
defendant or proved to a jury beyond a reasonable doubt.” 543 U.S.
at 224. Thus, error under the Sixth Amendment occurs when the
district court imposes a sentence greater than the maximum
permitted based on facts found by a jury or admitted by the
defendant. Id.
Subsequently, in United States v. Hughes, 401 F.3d 540,
546 (4th Cir. 2005), we held that a sentence imposed under the
pre-Booker mandatory sentencing scheme that was enhanced based on
facts found by the court, not found by a jury or admitted by the
defendant, constitutes plain error. That error affects the
defendant’s substantial rights and warrants reversal under Booker
when the record does not disclose what discretionary sentence the
district court would have imposed under an advisory guidelines
scheme. Hughes, 401 F.3d at 546-56. We directed sentencing courts
to calculate the appropriate guideline range, consider that range
in conjunction with other relevant factors under the guidelines and
18 U.S.C.A. § 3553(a) (West 2000 & Supp. 2008), and impose a
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sentence. See also Gall v. United States, 128 S. Ct. 586, 596
(2007). If the district court imposes a sentence outside the
guideline range, the court should state its reasons for doing so.
Gall, 128 S. Ct. at 597. Hughes also recognized “that after
Booker, there are two potential errors in a sentence imposed
pursuant to the pre-Booker mandatory guidelines regime: a Sixth
Amendment error, which Hughes raised, and an error in failing to
treat the guidelines as advisory, which Hughes did not raise.”
Hughes, 401 F.3d at 552.
In addition to the plain error at Gore’s original
sentencing attributable to failing to treat the guidelines as
advisory, an error that we found affected Gore’s substantial
rights, we now find that the Sixth Amendment was violated because
Gore was sentenced to a greater term of imprisonment than the
maximum permitted based on facts found by a jury or admitted by
Gore. At sentencing, the district court declined to expressly find
Gore was a career offender because it believed the finding would
not have affected Gore’s sentencing guidelines range of 360 months
to life imprisonment. However, Gore admitted to responsibility for
141 kilograms of powder cocaine, translating to a base offense
level of thirty-six. See U.S. Sentencing Guidelines Manual
(“USSG”) § 2D1.1(c)(2). Gore denied the factual basis for a two-
level firearm enhancement, which was never found by the jury beyond
a reasonable doubt. Based on an allowable total offense level of
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thirty-six and a criminal history category of III, the maximum
sentence permitted based on facts found by a jury or admitted by
Gore was 235 to 263 months’ imprisonment under the then-mandatory
sentencing guidelines. See USSG Ch. 5, Pt. A (sentencing table).
Thus, resentencing is required in light of Booker and its progeny.
Finally, in a submission filed pursuant to Fed. R. App.
P. 28(j), Gore contends that his 360-month sentence was also
erroneous in light of Kimbrough v. United States, 128 S. Ct. 558
(2007), because his offense level calculation was based in part on
a finding that he was responsible for 1.5 kilograms of crack
cocaine. On remand, the district court will be able to consult
Kimbrough and other applicable post-Booker caselaw in fashioning an
appropriate sentence.
Accordingly, we affirm Gore’s conviction for the reasons
set forth in our 2004 opinion addressing that appeal. We vacate
Gore’s sentence and remand for further proceedings in light of
Booker. 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 IN PART;
VACATED AND REMANDED IN PART
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