PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 03-4966
WARREN COLLINS,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of West Virginia, at Bluefield.
David A. Faber, Chief District Judge.
(CR-02-102)
Argued: December 1, 2004
Decided: June 20, 2005
Before NIEMEYER and MICHAEL, Circuit Judges, and
Norman K. MOON, United States District Judge for the
Western District of Virginia, sitting by designation.
Affirmed by published opinion. Judge Moon wrote the opinion, in
which Judge Niemeyer and Judge Michael joined.
COUNSEL
ARGUED: Sante E. Boninsegna, Jr., Pineville, West Virginia, for
Appellant. John Lanier File, Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Beckley, West
Virginia, for Appellee. ON BRIEF: Kasey Warner, United States
Attorney, Beckley, West Virginia, for Appellee.
2 UNITED STATES v. COLLINS
OPINION
MOON, District Judge:
A jury convicted Warren Collins of conspiracy to distribute
cocaine base and possession of cocaine base with the intent to distrib-
ute. Collins appeals his convictions, arguing: (1) the district judge
erred in denying his motion to suppress; (2) there was insufficient evi-
dence to support his conviction of possession with the intent to dis-
tribute; (3) he cannot constitutionally be convicted of conspiracy
when his sole co-conspirator James Scott was acquitted; and (4) the
district judge erred by sentencing him as a career offender under the
Federal Sentencing Guidelines. Finding no merit in Collins’s argu-
ments, we affirm his convictions. Further, although we find that the
district court committed a plain error under United States v. Booker,
125 S. Ct. 738 (2005),1 when it treated the Sentencing Guidelines as
mandatory in calculating Collins’s sentence, we determine that Col-
lins has not met his burden of demonstrating that this error affected
his substantial rights. Therefore, we affirm Collins’s sentence.
On April 3, 2002, undercover officers of the Southern Regional
Drug and Violent Crime Task Force were patrolling "The Hill," an
area known for drug trafficking in Princeton, West Virginia. The offi-
cers noticed a parked vehicle occupied by two men. These two men
were James Scott, sitting in the driver’s seat of the parked vehicle,
and Warren Collins, sitting in the passenger’s seat.
As the officers drove by the parked vehicle in an unmarked Beretta,
Scott put his arm out the window and motioned for the officers to
come over. The officers pulled alongside the parked vehicle. Scott
asked the officers, "what do you need?" One of the officers, Detective
T. A. Bailey, testified at trial that he took this statement to mean that
Scott was offering to sell drugs. The officers then stopped their vehi-
cle. Bailey exited the Beretta and walked toward the driver’s side of
the parked vehicle. As he began talking with Scott, Bailey observed
Collins throw a plastic baggie onto the passenger-side floorboard of
the vehicle. Bailey then walked around to the passenger’s side of the
vehicle, ordered Collins out of the vehicle, and handcuffed him.
1
Consolidated with United States v. Fanfan, 125 S. Ct. 738 (2005).
UNITED STATES v. COLLINS 3
Detective Bailey then reached into the vehicle and picked up the
baggie from the passenger-side floorboard. The baggie contained a
chunk of tan material which appeared to Bailey, based on his training
and experience, to be cocaine base. Bailey then arrested Collins. The
tan material in the baggie later was determined to be 2.59 grams of
cocaine base.
A grand jury charged Collins with possession of cocaine base with
the intent to distribute and conspiracy to distribute cocaine base. The
grand jury charged Scott only with conspiracy to distribute cocaine
base. Prior to the trial, the district court denied Collins’s motion to
suppress the cocaine base found in the vehicle. Following the trial, a
jury convicted Collins of both charges, but acquitted Scott of the con-
spiracy charge. The district judge sentenced Collins to 216 months of
incarceration.
I.
Collins first argues that the district judge erred in denying his
motion to suppress. Collins maintains that Officer Bailey seized him
by ordering him out of the vehicle and immediately handcuffing him,
and that this seizure and the subsequent search of the vehicle violated
the Fourth Amendment because the officer lacked probable cause to
do so.
When considering a motion to suppress on appeal, we review a dis-
trict court’s factual findings for clear error and its legal determina-
tions de novo. United States v. Perkins, 363 F.3d 317, 320 (4th Cir.
2004). Because the district court denied the motion to suppress, we
will view the evidence in the light most favorable to the government.
Id.
We find that the seizure of Collins and the search of the vehicle did
not violate the Fourth Amendment because Officer Bailey had proba-
ble cause to believe that a felony was being committed when he
ordered Collins out of the vehicle and handcuffed him. United States
v. McCraw, 920 F.2d 224, 227 (4th Cir. 1990). The officers, who had
a combined twenty-seven years of experience as police officers and
seven years of experience in narcotics, were patrolling an area known
for drug trafficking when they noticed a vehicle occupied by two men
4 UNITED STATES v. COLLINS
parked in front of an empty lot. The officers believed that Scott was
offering to sell them drugs when he motioned them over and asked,
"what do you need?" Officer Bailey’s suspicions increased when he
saw Collins throw a plastic baggie onto the floor of the vehicle. Bai-
ley testified at trial that a plastic baggie is a common way to package
cocaine in that area. Based on these facts, it was reasonable for Bailey
to believe that drug trafficking, a felony, was taking place. Because
Bailey had probable cause, he was justified in seizing Collins by
ordering him out of the vehicle and handcuffing him. Officer Bailey
also was justified by the automobile exception to search the vehicle
in order to obtain the baggie from the floorboard, because he had
probable cause to believe that the vehicle contained the evidence of
a crime and exigent circumstances existed. California v. Carney, 471
U.S. 386, 390-91 (1985). Therefore, we conclude that the district
judge was correct in denying Collins’s motion to suppress.
II.
Collins next argues that his conviction for possession with the
intent to distribute should be reversed because there was insufficient
evidence for a reasonable jury to find his guilt beyond a reasonable
doubt. To convict a defendant of possession with the intent to distrib-
ute, the government must prove: (1) possession of a narcotic con-
trolled substance; (2) knowledge of the possession; and (3) the intent
to distribute. United States v. Randall, 171 F.3d 195, 209 (4th Cir.
1999). We have said that the intent to distribute can be inferred from
a number of factors, including but not limited to: (1) the quantity of
the drugs; (2) the packaging; (3) where the drugs are hidden; and (4)
the amount of cash seized with the drugs. United States v. Bell, 954
F.2d 232, 235 (4th Cir. 1992); United States v. Fisher, 912 F.2d 728,
730 (4th Cir. 1990). Because none of these factors applies in this case,
Collins argues that there was insufficient evidence of his intent to dis-
tribute the cocaine base.
However, when a defendant challenges the sufficiency of the evi-
dence on appeal, "the relevant question is whether, after viewing the
evidence in the light most favorable to the prosecution, any rational
trier of fact could have found the essential elements of the crime
beyond a reasonable doubt." Fisher, 912 F.2d at 730. Applying this
standard, we conclude that a rational trier of fact could have found
UNITED STATES v. COLLINS 5
Collins guilty of possession of cocaine base with the intent to distrib-
ute.
The government presented evidence that two experienced narcotics
officers encountered Collins and Scott in a parked vehicle in a high
drug-trafficking area. The vehicle was parked in front of an empty lot.
Scott motioned the officers over and asked them, "what do you
need?" Detective Bailey testified that he took this statement to mean
that Scott was offering to sell drugs. The government proved that the
other man, Collins, had drugs in his possession. From this evidence,
the jury could infer that the two men were acting in concert with the
objective of selling drugs—Scott was offering to sell the drugs that
Collins had in his possession.
Scott testified that he motioned the police officers over because he
mistakenly thought they were his friends, and he said "what do you
all want?" when he realized he did not know them. However, the jury
was free to discredit his testimony because he was a convicted felon,
because his testimony conflicted with that of other witnesses, and
because of his obvious bias. The jury could therefore infer that Col-
lins possessed the cocaine base with the intent to distribute it.
There is more evidence of the intent to distribute in this case than
in United States v. Fountain, 993 F.2d 1136 (4th Cir. 1993), which
Collins advances to support his position. In Fountain, we found there
was insufficient evidence of possession with the intent to distribute
when the police found the defendant standing around in a high drug-
trafficking area with three separately packaged baggies of marijuana
totaling 2.3 grams in his sock. Fountain, 993 F.2d at 1137-38. Here,
the statement of Scott to the police officers provides evidence of the
intent to distribute beyond mere evidence of possession of drugs in a
high drug-trafficking area, which was all that was present in Foun-
tain.
III.
Collins also argues that we should overturn his conspiracy convic-
tion because he cannot constitutionally be convicted of a conspiracy
when his co-conspirator Scott was acquitted. Collins argues that
because the same jury that convicted him acquitted his sole co-
6 UNITED STATES v. COLLINS
conspirator of the conspiracy, the inconsistent verdicts cannot stand.
The law is established on this point. In United States v. Powell, 469
U.S. 57, 65 (1984), the Supreme Court held that a defendant is not
entitled to a new trial when the jury reaches an inconsistent verdict.
In United States v. Thomas, 900 F.2d 37 (4th Cir. 1990), based on the
holding in Powell, this Court declined to overturn a defendant’s con-
spiracy conviction when the defendant’s co-conspirator was acquitted
of the conspiracy charge. See Thomas, 900 F.2d at 40 ("According to
the Supreme Court, inconsistent verdicts should not necessarily be
interpreted as a windfall to the Government at the defendant’s
expense."). Collins’s case is indistinguishable from these two cases.
Accordingly, we hold that Collins’s conviction should not be reversed
because his co-conspirator was acquitted.
IV.
Collins next challenges the district court’s sentencing calculation
by arguing that the judge should not have applied the Sentencing
Guidelines § 4B1.1 career offender enhancement2 to him. At the time
of his sentencing, Collins had two previous felony convictions—one
for a crime of violence and one for a controlled substance offense. At
Collins’s sentencing, the judge applied the § 4B1.1 enhancement to
him on account of these offenses.
Collins does not dispute that the § 4B1.1 enhancement otherwise
would apply to him, but argues that his two previous offenses are
related under the meaning of Guideline § 4A1.2 and therefore should
have been treated as one offense for purposes of sentencing.3 Collins
2
Guideline § 4B1.1(a) provides:
A defendant is a career offender if (1) the defendant was at least
eighteen years old at the time of the instant offense of convic-
tion; (2) the instant offense of conviction is a felony that is either
a crime of violence or a controlled substance offense; and (3) the
defendant has at least two prior felony convictions of either a
crime of violence or a controlled substance offense.
United States Sentencing Commission, Guidelines Manual § 4B1.1(a)
(Nov. 2004) (hereinafter USSG).
3
Guideline § 4A1.2(a)(2) provides that "Prior sentences imposed in
related cases are to be treated as one sentence for purposes of § 4A1.1(a),
(b), and (c)." USSG § 4A1.2(a)(2).
UNITED STATES v. COLLINS 7
argues that his prior offenses are related because they occurred in the
same area and during the same general time frame, they were consoli-
dated for plea and sentencing, and a judge ordered the sentences for
both offenses to run concurrently. In addition, between the time of
this trial and sentencing in the federal district court, Collins obtained
a nunc pro tunc order from a state court judge consolidating the cases.4
The text of the Sentencing Guidelines is instructive on this point. The
commentary to Guideline § 4A1.2 states: "Prior sentences are not
considered related if they were for offenses that were separated by an
intervening arrest." USSG § 4A1.2, comment. (n. 3). Collins concedes
that an intervening arrest separated the two prior offenses. Accord-
ingly, the district judge properly found Collins to be a career offender
under the Guidelines because the two offenses are not related for sen-
tencing purposes.
Regarding Collins’s sentence, we also must address whether this
case implicates United States v. Booker, 125 S. Ct. 738 (2005), which
Collins raised on appeal.5 The district judge sentenced Collins with
the understanding that the Federal Sentencing Guidelines were man-
datory according to binding precedent at that time. See United States
v. Kinter, 235 F.3d 192, 199-202 (4th Cir. 2000). Before imposing
Collins’s sentence, the judge made two post-verdict factual findings
that potentially violate Booker.
First, as discussed supra, the judge found Collins to be a career
criminal based on his prior convictions and applied the § 4B1.1
enhancement to him. This enhancement increased Collins’s Guide-
lines offense level from a twenty to a thirty-two. J.A. 481. The
Apprendi line of cases carves out an exception for enhancements
based on the fact of a prior conviction. See Apprendi v. New Jersey,
530 U.S. 466, 490 (2000) ("Other than the fact of a prior conviction,
any fact that increases the penalty for a crime beyond the prescribed
4
The state court judge entered this order nine years after Collins was
sentenced for the offenses.
5
Before we heard arguments in this case, Collins filed a motion to
allow the withdrawal of counsel, in part because of a disagreement over
whether Collins’s counsel should have raised issues pertaining to Blakely
v. Washington, 124 S. Ct. 2531 (2004), in his appeal. We denied the
motion to withdraw, but considered the Blakely issue as raised on appeal.
8 UNITED STATES v. COLLINS
statutory maximum must be submitted to a jury, and proved beyond
a reasonable doubt."); Booker, 125 S. Ct. at 756 (same, citing
Apprendi); United States v. Hughes, 401 F.3d 540, 546 (4th Cir.
2005)(same, citing Apprendi and Booker). However, in light of Shep-
ard v. United States, 125 S. Ct. 1254 (2005), and United States v.
Washington, 404 F.3d 834 (4th Cir. 2005), we must determine
whether the judge’s application of the career offender enhancement
to Collins falls within the Apprendi "fact of a prior conviction" excep-
tion or whether it potentially violates the Sixth Amendment under
Booker.
In Shepard v. United States, the Supreme Court held that a sentenc-
ing court cannot look beyond the charging document, the terms of a
plea agreement, the plea colloquy, the statutory definition, or any
explicit finding of the trial judge to which the defendant assented to
determine a disputed fact about a prior conviction.6 See Shepard, 125
S. Ct. at 1263 (stating that the sentencing judge’s finding about the
disputed fact of whether the defendant’s prior conviction was for
generic burglary is "too far removed from the conclusive significance
of a prior judicial record" to fall within the Apprendi exception for
prior convictions). This holding prompted us to consider in United
States v. Washington whether the Sixth Amendment is violated when
a district judge makes findings of fact regarding the circumstances of
a defendant’s prior convictions, and then relies on these findings to
enhance the defendant’s sentence. Washington, 404 F.3d at 838. This
question implicated "the scope of the ‘fact of a prior conviction’
exception to the Sixth Amendment protections outlined in Apprendi
v. New Jersey." Id. In Washington, the sentencing judge made the
6
In Shepard, the question was whether the defendant’s prior burglary
conviction qualified as a "violent felony" under the Armed Career Crimi-
nal Act (ACCA), 18 U.S.C. § 924(e). The ACCA mandates a 15-year
minimum sentence for possession of a firearm after three prior convic-
tions of "serious drug offenses" or "violent felonies." 18 U.S.C. § 924(e)
(2000). The ACCA defines burglary as a violent felony only if it was
committed in a building or enclosed space ("generic" burglary). The
Court held that a sentencing court cannot look to police reports or com-
plaint applications to determine whether a defendant’s prior state bur-
glary conviction was a generic burglary for purposes of the ACCA.
Shepard, 125 S. Ct. at 1257.
UNITED STATES v. COLLINS 9
determination, after fact-finding, that the defendant’s prior conviction
of breaking and entering into the offices of a drug and violent crime
task force was a "crime of violence" for purposes of Federal Sentenc-
ing Guideline § 2K2.1(a).7 Washington, 404 F.3d at 837. We found
that the resulting enhancement of the defendant’s sentence did not fall
within the Apprendi "fact of a prior conviction" exception and thus
violated the Sixth Amendment. Id. at 843. Similarly, in this case we
must determine whether the district judge’s finding that the career
offender enhancement applied to Collins falls within the Apprendi
"fact of a prior conviction" exception.
In order to conclude that the Sentencing Guidelines career offender
enhancement applied to Collins, the judge first determined that Col-
lins’s prior convictions were either a "crime of violence" or a "con-
trolled substance offense," as defined by Guideline § 4B1.1.8
7
Sentencing Guideline § 2K2.1(a)(4) provides that a defendant’s sen-
tence will be enhanced to an offense level of twenty if the defendant has
one prior felony conviction of a "crime of violence" or a "controlled sub-
stance offense." USSG § 2K2.1(a)(4). A "crime of violence" is defined
as either a crime that has as an element the use, attempted use, or threat-
ened use of physical force against the person of another, or a burglary
of a dwelling, arson, extortion, a crime that involves the use of explo-
sives, or a crime that "otherwise involves conduct that presents a serious
potential risk of physical injury to another." Id. § 4B1.2(a). In Washing-
ton, the sentencing judge made the determination, after fact-finding, that
breaking and entering into the offices of a drug and violent crime task
force "involves conduct that presents a serious potential risk of physical
injury to another." Washington, 404 F.3d at 837. In making this determi-
nation, the judge found by a preponderance of the evidence that "break-
ing and entering of a government-owned building to steal the goods and
property of a drug and violent crime task force is conduct that, by its
nature, presents a serious potential risk of physical injury to another." Id.
8
Guideline § 4B1.1(a) provides:
A defendant is a career offender if (1) the defendant was at least
eighteen years old at the time of the instant offense of convic-
tion; (2) the instant offense of conviction is a felony that is either
a crime of violence or a controlled substance offense; and (3) the
defendant has at least two prior felony convictions of either a
crime of violence or a controlled substance offense.
USSG § 4B1.1(a).
10 UNITED STATES v. COLLINS
Collins’s prior offenses were for possession of crack cocaine with the
intent to deliver and malicious wounding. J.A. 483-84, ¶¶ 39, 41. It
is undisputed that these crimes were either a "crime of violence" or
a "controlled substance offense" as defined by § 4B1.1, and it was not
necessary for the judge to make any findings about the circumstances
of these convictions in order to reach this conclusion.9 Next, the judge
found that the two offenses were separated by an intervening arrest,
and thus concluded that they were not related for the purposes of
§ 4B1.1.10 At the sentencing hearing, Collins conceded that the two
offenses were separated by an intervening arrest. See J.A. 436-37.11
9
Guideline § 4B1.1 states that the terms "crime of violence" and "con-
trolled substance offense" are defined in § 4B1.2. USSG § 4B1.1, com-
ment. (n.1). Guideline § 4B1.2 defines a "crime of violence" as any
offense that has as an element the "use, attempted use, or threatened use
of physical force against the person of another." Id. § 4B1.2(a)(1). The
same guideline defines a "controlled substance offense" as an offense
that "prohibits the manufacture, import, export, distribution, or dispens-
ing of a controlled substance" or the "possession of a controlled sub-
stance . . . with intent to manufacture, import, export, distribute, or
dispense." Id. § 4B1.2(b). Based on these definitions, it is clear that the
judge could conclude that Collins’s offense of malicious wounding was
a "crime of violence" and that his offense of possession of cocaine base
with the intent to distribute was a "controlled substance offense" within
the meaning of § 4B1.1 without entering into any further fact finding.
10
The Guidelines specify that an intervening arrest occurs when the
defendant is arrested for the first offense prior to committing the second
offense. USSG § 4A1.2, comment. (n.3).
11
At the sentencing hearing, the court heard arguments on Collins’s
objection to being classified as a career offender. See J.A. 429-39. After
the government attorney explained the sequence of events to the judge,
which included the fact that there was an intervening arrest between the
two prior offenses, the judge asked Collins’s attorney whether he had any
dispute about the timing of the events described by the government. J.A.
436-37. Collins’s attorney replied, "[n]o, Your Honor." J.A. 437. The
judge then asked Collins’s attorney, "[i]f that’s what happened, how do
you get around the intervening arrest?" Id. Collins’s attorney replied:
"Well, I believe were this court to follow what the other courts have said,
that we would not be able to." Id. It is clear from this colloquy that the
attorney only was arguing a point of law, and not disputing any particular
fact about the prior convictions within the meaning of Shepard and
Washington.
UNITED STATES v. COLLINS 11
Therefore, because there was no dispute regarding the fact that the
offenses were separated by an intervening arrest, the judge did not
need to enter into any fact finding regarding a disputed fact about a
prior conviction within the meaning of Washington and Shepard. For
this reason, we do not need to address whether this finding was "too
far removed from the conclusive significance of a prior judicial
record" to implicate the Sixth Amendment. Shepard, 125 S. Ct. at
1262; Washington, 404 F.3d at 842 (quoting Shepard). This case can
thereby be distinguished from Shepard and Washington, and the
judge’s application of the career offender enhancement to Collins
falls within the Apprendi exception. Accordingly, the judge’s finding
that the career offender enhancement applied to Collins does not vio-
late the Sixth Amendment under Booker.
Second, the judge made a post-verdict finding as to the amount of
drugs involved in Collins’s convictions. At sentencing, the judge
found that Collins was responsible for 2.59 grams of cocaine base,
resulting in a base offense level of twenty. J.A. 481. However, the
indictment did not charge any specific drug weight, and the jury made
no finding as to drug weight. J.A. 14-15. The judge’s finding poten-
tially violates Booker because the judge found that Collins was
responsible for a greater amount of drugs than he could have found
based on the facts in the jury verdict alone. See Booker, 125 S. Ct. at
749; Hughes, 401 F.3d at 546.
In addition, in the district court’s Memorandum of Sentencing Hearing
and Report of Statement of Reasons, the court summarized the defen-
dant’s evidence in presenting his objection to being classified as a career
offender in the presentence report. J.A. 522-23. Collins presented evi-
dence that he was arrested on August 26, 1993, for a charge of malicious
wounding that had occurred on August 17, 1993. At the time of this
arrest, Collins was found to be in possession of crack cocaine. On Octo-
ber 14, 1993, Collins was again arrested, this time for possessing crack
cocaine with the intent to deliver on August 26, 1993. J.A. 522. Thus,
Collins’s own evidence shows that his two offenses were separated by
an intervening arrest, again confirming that the district judge did not
have to resolve any disputed fact about a prior conviction in order to
apply the career offender enhancement.
12 UNITED STATES v. COLLINS
However, no Booker Sixth Amendment violation occurred here
because Collins’s sentence, with the addition of the career offender
enhancement, still would have been the same even if the judge had
not made the finding as to the drug weight. With the calculation of
the career offender enhancement, Collins would have been sentenced
at an offense level of thirty-two even if the judge had not made the
drug weight finding and instead sentenced Collins at the lowest possi-
ble weight of cocaine base under the Guidelines. The judge found that
Collins had a base offense level of twenty based on the drug weight
finding of 2.59 grams. J.A. 481. The judge’s finding that Collins was
a career offender then increased his total offense level to a thirty-two.
Id. If the judge had not made the finding as to the drug weight, Col-
lins’s base offense level would have been a twelve, which is the level
corresponding to the lowest possible quantity of cocaine base under
§ 2D1.1 of the Guidelines.12 Even if the judge had sentenced Collins
at a base offense level of twelve, the application of the career offender
enhancement still would have increased his total offense level to a
thirty-two.13 Accordingly, the judge’s finding as to the drug weight
did not violate the Sixth Amendment under Booker, because it did not
increase Collins’s sentence beyond the maximum that could have
been imposed based on the facts in the jury verdict alone.
12
USSG § 2D1.1(c) (Drug Quantity Table).
13
Section 4B1.1(b) of the Sentencing Guidelines states that the career
offender enhancement is to be calculated by looking to the statutory
maximum of the base offense. USSG § 4B1.1(b). Collins was charged
with violations of 21 U.S.C. § 846 and 21 U.S.C. § 841(a). J.A. 14-15.
To determine the statutory maximums for both of these offenses, one
must look to 21 U.S.C. § 841(b). Under 21 U.S.C. § 841(b), the maxi-
mum sentence for an offense involving less than five grams of cocaine
base is twenty years and a $1,000,000 fine. See 21 U.S.C. § 841(b)(1)(C)
(2000). Under the Guidelines, both an offense level of twelve, which cor-
responds to less than 250 milligrams of cocaine base, and an offense
level of twenty, which corresponds to at least two grams but less than
three grams of cocaine base, carry a statutory maximum of twenty years
under 21 U.S.C. § 841(b). See id.; USSG § 2D1.1(c) (Drug Quantity
Table). Under § 4B1.1, an offense with a statutory maximum of twenty
years translates to a total offense level of thirty-two with the application
of the career offender enhancement. USSG § 4B1.1(b) (2004). Therefore,
Collins’s offense level would have been calculated as a thirty-two with
the career offender enhancement whether the judge had sentenced him
with a base offense level of a twelve or a twenty.
UNITED STATES v. COLLINS 13
Although Collins’s sentence did not violate the Sixth Amendment
under Booker, the district judge did sentence Collins with the under-
standing that the Sentencing Guidelines were mandatory, rather than
advisory, as the Booker remedial scheme now dictates. The judge’s
treatment of the Guidelines as mandatory at Collins’s sentencing
gives rise to another type of sentencing error under Booker. This type
of error is non-constitutional, and is distinct from the type of Sixth
Amendment violations raised in Booker. See Hughes, 401 F.3d at 553.
Collins raised this error for the first time on appeal. Accordingly,
we review Collins’s sentence for plain error. See United States v.
White, No. 04-4349, 2005 WL 949326, at *4 (4th Cir. Apr. 26, 2005);
Fed. R. Crim. P. 52(b); United States v. Olano, 507 U.S. 725, 731-32
(1993). To establish plain error, Collins must show that: (1) an error
occurred; (2) the error was plain; and (3) the error affected his sub-
stantial rights. White, 2005 WL 949326, at *4. Even if Collins meets
these three steps, it remains within our discretion whether or not to
notice the error. Id. We should only notice the error if it "seriously
affect[s] the fairness, integrity or public reputation of judicial pro-
ceedings." Id. (quoting Olano, 507 U.S. at 732).
An error occurred here when the district judge imposed a sentence
under the former mandatory Guidelines regime rather than under the
advisory regime outlined in Booker.14 Id. at *5; Hughes, 401 F.3d at
553. We next determine whether this error is plain. Following our rea-
soning in White, this error is plain because "the law at the time of trial
was settled and clearly contrary to the law at the time of appeal." See
White, 2005 WL 949326, at *6 (citing Johnson v. United States, 520
U.S. 461, 468 (1997)).
The next step of the plain error analysis requires us to evaluate
whether the error affected Collins’s substantial rights or was prejudi-
cial. Id. at *6; Hughes, 401 F.3d at 548. In accordance with our analy-
sis in White, at this step, Collins has the burden of showing that "the
error actually affected the outcome of the proceedings." See White,
2005 WL 949326, at *12 ("[T]he burden rests on the defendant, rather
than the government, to prove that the error affected substantial
14
We of course offer no criticism of the district judge, who followed
the law and procedure in effect at the time of Collins’s sentencing.
14 UNITED STATES v. COLLINS
rights.") We conclude that Collins cannot meet his burden of demon-
strating that he suffered actual prejudice from being sentenced under
a mandatory sentencing regime. The record in this case does not dem-
onstrate that the judge’s treatment of the Guidelines as mandatory
resulted in an increased sentence. See id. at *13. Instead, the record
in this case affirmatively shows that the judge’s treatment of the
Guidelines as mandatory did not result in an increased sentence.
The district judge sentenced Collins at the bottom of the Guidelines
range, plus six months. The judge did so because he felt that a sen-
tence at the bottom of the Guidelines was warranted because the
Guidelines range was so high and because of the mitigating factors
advanced by Collins’s attorney. J.A. 446. The judge added six months
to the sentence, however, because he felt that, "in view of [Collins’s]
lengthy criminal history, and the fact that [Collins has] totally shown
a complete ability to disregard all efforts at rehabilitation, and [his]
continuing bad attitude," it would be "an insult to the principles of the
Guidelines" to sentence Collins at the very bottom of the Guidelines.
J.A. 446-47. Thus, because the district judge sentenced Collins to a
greater sentence than required by the Guidelines and gave compelling
reasons for doing so, it appears that the judge would not have given
Collins a sentence below the Guidelines range even if he had the dis-
cretion to do so. Although the judge felt that the mandatory nature of
the Guidelines limited his discretion, this view did not stop him from
imposing as light a sentence as he could have in this case.
In addition, the judge stated that he felt that the sentence imposed
was "sufficient to satisfy all the statutory objectives of sentencing."
J.A. 447. The judge also stated, "[i]n reaching my decision, I consid-
ered all the factors set out in 18 United States Code § 3553(a)." Id.
Because the judge already has considered the § 3553(a) factors and
the statutory objectives of sentencing, a resentencing conducted pur-
suant to the Booker remedial scheme is not likely to produce a differ-
ent result. The fact that the judge already has considered the §3553(a)
factors, which judges now must consider under the Booker remedial
scheme, makes it even less likely that the mandatory nature of the
Guidelines actually affected the outcome of Collins’s sentencing pro-
ceedings.
Although the district court plainly erred under Booker by treating
the Guidelines as mandatory in calculating Collins’s sentence, Collins
UNITED STATES v. COLLINS 15
cannot show that this error was prejudicial. Thus, we will not remand
for resentencing under Booker.
For the reasons set forth above, we affirm Collins’s convictions
and sentence.
AFFIRMED