United States v. Childer

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 09-4186

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

ROBERT LEE CHILDERS,

Defendant - Appellant.

Appeal from the United States District Court for the Northern
District of West Virginia, at Clarksburg. Irene M. Keeley,
District Judge. (1:07-cr-00017-IMK-1)

Submitted: February 18, 2010 Decided: March 15, 2010

Before MOTZ, GREGORY, and AGEE, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Brian J. Kornbrath, Federal Public Defender, Clarksburg, West
Virginia, for Appellant. Sharon L. Potter, United States
Attorney, Zelda E. Wesley, Assistant United States Attorney,
Clarksburg, West Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

Robert Lee Childers pled guilty to distribution of

crack cocaine, in violation of 21 U.S.C. §§ 841(a)(1),

841(b)(1)(C) (2006), and was sentenced to 135 months’

imprisonment. On appeal, he raises an as-applied Sixth

Amendment challenge to his sentence, arguing that his sentence

would not be “reasonable” under 18 U.S.C. § 3553(a) (2006) if

not for the judicially-found facts that substantially increased

his guidelines range. Finding no constitutional error, we

affirm.

Although the count in the indictment to which Childers

pled guilty charged him with distribution of approximately .23

grams of crack cocaine, at sentencing, the district court found

Childers responsible under relevant conduct for a “high low of

184.94 to 260.77 [grams of cocaine base].” Childers’ ultimate

advisory guidelines range based in part on this finding was 121

to 151 months’ imprisonment. The district court concluded that

135 months was a reasonable sentence in Childers’ case.

On appeal, Childers raises an as-applied Sixth

Amendment challenge to his sentence, arguing that his sentence

would not be “reasonable” under 18 U.S.C. § 3553(a) in the

absence of the district court’s factual determination as to the

amount of drugs attributable to him. After United States v.

Booker, 543 U.S. 220 (2005), the sentencing court still may

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engage in fact-finding necessary to a correct calculation of the

applicable guidelines. See United States v. Battle, 499 F.3d

315, 322-23 (4th Cir. 2007). Nonetheless, Childers argues that,

in his case, a constitutional violation occurred because the

district court’s decision significantly increased his guideline

range.

Childers bases his argument on Justice Scalia’s

concurring opinion in Rita v. United States, 551 U.S. 338

(2007), in which Justice Scalia stated, “there will inevitably

be some constitutional violations under a system of substantive

reasonableness [appellate] review, because there will be some

sentences that will be upheld as reasonable only because of the

existence of judge-found facts.” Id. at 374 (Scalia, J.,

concurring in part and concurring in the judgment) (emphasis in

original). Childers argues that, because a judge-found fact

(the amount of drugs attributed to him) was necessary to achieve

a correct calculation of the guidelines range and a lawful

sentence and that the fact determined by the court had the

effect of increasing his sentence significantly, his Sixth

Amendment right to a jury trial was violated.

A district court violates the Sixth Amendment when it

applies the guidelines as mandatory and imposes a sentence

greater than the maximum allowed by the jury’s verdict. See

United States v. Perry, 560 F.3d 246, 258 (4th Cir. 2009)

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(holding that, after Booker, district courts may “continue to

make factual findings concerning sentencing factors by a

preponderance of the evidence,” including relying on acquitted

conduct); United States v. Webb, 545 F.3d 673, 677 (8th Cir.

2008) (finding that, as long as the sentence imposed does not

exceed the statutory maximum authorized by the jury’s verdict,

the district court does not violate the Sixth Amendment by

imposing a sentence based on a higher drug quantity than was

determined by the jury).

In United States v. Benkahla, 530 F.3d 300, 312 (4th

Cir. 2008), we specifically rejected the Sixth Amendment as-

applied argument, finding it “too creative for the law as it

stands.” We reiterated that “[s]entencing judges may find facts

relevant to determining a Guidelines range by a preponderance of

the evidence, so long as that Guidelines sentence is treated as

advisory and falls within the statutory maximum authorized by

the jury’s verdict.” Id. As we noted, “[t]he point is thus

that the Guidelines must be advisory, not that judges may find

no facts.” Id.; see also United States v. Ashqar, 582 F.3d 819,

825 (7th Cir. 2009) (“While [the as-applied Sixth Amendment]

argument is not without its advocates, it is not the law.”)

(internal citations omitted); United States v. Setser, 568 F.3d

482, 498 (5th Cir. 2009) (rejecting as-applied Sixth Amendment

challenge to a higher sentence within the statutory maximum

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based on judicially-found facts); United States v. White, 551

F.3d 381, 384 (6th Cir. 2008) (en banc) (“In the post-Booker

world, the relevant statutory ceiling is no longer the

Guidelines range but the maximum penalty authorized by the

United States Code.”); United States v. Redcorn, 528 F.3d 727,

745-46 (10th Cir. 2008) (rejecting as-applied Sixth Amendment

challenge to judicially-found facts).

Here, Childers pled guilty to distribution of .28

grams of cocaine base. The maximum sentence allowed under the

statute based on his plea is twenty years’ imprisonment. See 21

U.S.C. § 841(b)(1)(C). The sentencing court determined by a

preponderance of the evidence that Childers was responsible for

between “184.94 to 260.77 [grams of cocaine base].” The 135-

month sentence imposed by the district court, based on this

finding and after treating the guidelines as advisory, was

within the maximum authorized sentence. Therefore, we find that

Childers’ sentence does not violate the Sixth Amendment.

Accordingly, we affirm Childers’ sentence. 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