UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-5008
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
MANTEL DELANCE MUBDI,
Defendant – Appellant.
On Remand from the Supreme Court of the United States.
(S. Ct. No. 12-7398)
Submitted: July 26, 2013 Decided: August 27, 2013
Before SHEDD, DAVIS, and DIAZ, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
ARGUED: Matthew Segal, FEDERAL DEFENDERS OF WESTERN NORTH
CAROLINA, INC., Asheville, North Carolina, for Appellant. Amy
Elizabeth Ray, OFFICE OF THE UNITED STATES ATTORNEY, Asheville,
North Carolina, for Appellee. ON BRIEF: Claire J. Rauscher,
Executive Director, Kevin A. Tate, Assistant Federal Defender,
FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA, INC., Charlotte,
North Carolina, for Appellant. Anne M. Tompkins, United States
Attorney, Melissa L. Rikard, Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Mantel Delance Mubdi entered a conditional guilty plea to
conspiracy to distribute and possess with intent to distribute a
quantity of cocaine and at least 50 grams of cocaine base
(“crack cocaine”), in violation of 21 U.S.C. § 846, possession
with intent to distribute a quantity of cocaine and at least 50
grams of crack cocaine, in violation of 21 U.S.C. § 841, and two
firearms offenses not at issue here. Although the Fair
Sentencing Act of 2010 (“FSA”), Pub. L. No. 111-220, 124 Stat.
2372, went into effect prior to Mubdi’s sentencing, the district
court sentenced him to a total of 300 months’ imprisonment in
accordance with pre-FSA law. On appeal, this court affirmed the
district court over Mubdi’s objection that the district court’s
use of judicial factfinding to find facts that increased the
mandatory minimum sentence violated his Fifth and Sixth
Amendment rights. United States v. Mubdi, 691 F.3d 334, 344-45
(4th Cir. 2012). The Supreme Court granted Mubdi’s petition for
writ of certiorari, vacated this court’s judgment, and remanded
for further consideration in light of Alleyne v. United States,
133 S. Ct. 2151 (2013). Because of intervening changes in law,
we vacate Mubdi’s sentence and remand to the district court for
resentencing.
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I.
The presentence investigation report (“PSR”) found Mubdi
responsible for 290.5 grams of crack cocaine. Because of a
prior felony drug conviction, Mubdi faced a twenty-year
mandatory minimum sentence under pre-FSA law. Mubdi did not
object to the PSR’s finding that the crime involved 290.5 grams,
but he did argue that the FSA governed his sentence, and that
under the FSA the district court had the authority to impose a
sentence of less than twenty years. The government argued that
it was irrelevant which law applied because Mubdi was in fact
responsible for 290.5 grams of crack cocaine--enough to trigger
a twenty-year mandatory minimum under either law. The district
court rejected Mubdi’s argument and sentenced him to concurrent
twenty-year sentences for the narcotics offenses. *
For the first time on appeal, Mubdi contended that the
district court also violated his Fifth and Sixth Amendment
rights by increasing the mandatory minimum sentence he faced
based on the 290.5 grams the district court found Mubdi actually
possessed, rather than the 50 grams to which Mubdi admitted. If
the court had used 50 grams to determine the mandatory minimum,
*
Mubdi also received a concurrent ten-year sentence for
being a felon in possession of a firearm, in violation of 18
U.S.C. § 922(g)(1), and a consecutive five-year sentence for
possession of a firearm in furtherance of a drug trafficking
crime, in violation of 18 U.S.C. § 924(c).
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Mubdi would have faced a mandatory minimum ten-year sentence.
This court found that his argument was foreclosed by Harris v.
United States, 536 U.S. 545, 568 (2002) (holding that increasing
mandatory minimums based on judicial factfinding does not
violate the Sixth Amendment).
After we decided Mubdi’s appeal, the Supreme Court
overruled Harris in Alleyne and held that facts which increase
mandatory minimum sentences must be admitted or submitted to the
jury and established beyond a reasonable doubt. 133 S. Ct. at
2163. Thus, the district court’s finding that Mubdi’s crime
involved 290.5 grams of cocaine, a finding that increases the
the mandatory minimum sentence, is impermissible.
Since the briefing in this case, the Supreme Court has also
held that the FSA applies to pre-FSA offenders sentenced after
the Act’s effective date. Dorsey v. United States, 132 S. Ct.
2321, 2331 (2012). Thus, the FSA applies to Mubdi. We
reconsider Mubdi’s sentence in light of these intervening
changes.
II.
Mubdi did not preserve his Sixth Amendment claim before the
district court; therefore, we review his sentencing argument for
plain error. United States v. Lynn, 592 F.3d 572, 577 (4th Cir.
2010). An error is plain when it is clear or obvious, and
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affects substantial rights. Id. Even if the law at the time of
sentencing is “settled and clearly contrary to the law at the
time of appeal,” an error need only be “plain” at the time of
appellate review. Johnson v. United States, 520 U.S. 461, 468
(1997). Thus, even though the error was not clear to the
district court at the time of Mubdi’s sentencing--in fact, it
was settled that the district court was correct at that time--it
is now clear and obvious that the district court erred in
finding facts that raised Mubdi’s mandatory minimum sentence.
The error also affected Mubdi’s substantial rights. To
establish this element, Mubdi must show that the error actually
affected the outcome of the proceedings, i.e., that his
“sentence was longer than that to which he would otherwise be
subject.” United States v. Angle, 254 F.3d 514, 518 (4th Cir.
2001) (en banc). If the district court applied the FSA’s
mandatory minimum for 50 grams of cocaine, it is possible that
Mubdi’s sentence would be ten years shorter. Of course, the
district court may impose the same sentence on remand, but there
is nothing in the parties’ briefs that suggests such an outcome
is inevitable, nor is this possibility enough to deter us from
noticing the error. Cf. United States v. Hughes, 401 F.3d 540,
556 & n.14 (4th Cir. 2005).
Even when plain error is established, an appellate court
may correct the error only if “not doing so would result in a
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miscarriage of justice, or would otherwise seriously affect the
fairness, integrity or public reputation of judicial
proceedings.” United States v. Whitfield, 695 F.3d 288, 303
(4th Cir. 2012) (internal quotations omitted). We have
previously held that a failure to notice an error where the
sentence is in excess of that permitted by the jury verdict
because of a Sixth Amendment violation would have such an
effect. See United States v. Hughes, 401 F.3d 540, 555 (4th
Cir. 2005). In light of Alleyne, we conclude that a Sixth
Amendment violation involving a mandatory minimum sentence would
equally diminish the integrity and public reputation of the
judicial system. Accordingly, the district court plainly erred
by basing Mubdi’s mandatory minimum sentence on its finding that
Mubdi’s crime involved 290.5 grams of cocaine, rather than a
fact to which he admitted--responsibility for 50 grams.
III.
For the foregoing reasons, we vacate Mubdi’s sentence and
remand this case for resentencing.
VACATED AND REMANDED
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