United States v. Jean

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 03-4568

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

SAILE JEAN, a/k/a Shorty Black, a/k/a Blackie,
a/k/a Desire Jean Sallier, a/k/a Jean Saile,

Defendant - Appellant.

Appeal from the United States District Court for the District of
South Carolina, at Beaufort. Sol Blatt, Jr., Senior District
Judge. (CR-01-1117)

Submitted: June 8, 2005 Decided: July 19, 2005

Before WILKINSON, MICHAEL, and MOTZ, Circuit Judges.

Affirmed in part, vacated in part, and remanded by unpublished per
curiam opinion.

J. Bradley Bennett, SALVINI & BENNETT, L.L.C., Greenville, South
Carolina, for Appellant. Robert Hayden Bickerton, Assistant United
States Attorney, Charleston, South Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

Saile Jean appeals his jury convictions and 360-month

sentence for conspiracy to possess with intent to distribute in

excess of five kilograms of cocaine and fifty grams or more of

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

(b)(1)(A) (2000) and 21 U.S.C. § 846 (2000); possession with intent

to distribute 500 grams or more of cocaine, 21 U.S.C. § 841(a)(1),

(b)(1)(B) and 18 U.S.C. § 2 (2000); and making false statements to

a federal agent, in violation of 18 U.S.C. § 1001(a)(2) (2000).

Counsel has filed a brief in accordance with Anders v. California,

386 U.S. 738 (1967), stating that, in his view, there are no

meritorious grounds for appeal. Jean has filed pro se supplemental

briefs raising additional issues. We affirm Jean’s convictions,

but vacate the sentence imposed by the district court, and remand

for reconsideration of the sentence in light of United States v.

Booker, 125 S. Ct. 738 (2005).

Counsel raises as a potential issue that the evidence at

trial was insufficient to support the jury’s verdicts. A defendant

challenging the sufficiency of the evidence faces a heavy burden.

See United States v. Beidler, 110 F.3d 1064, 1067 (4th Cir. 1997).

When, as here, the defendant challenges the sufficiency of the

evidence at trial, the relevant question is whether, taking the

view most favorable to the Government, there is substantial

evidence to support the verdict. See Glasser v. United States, 315

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U.S. 60, 80 (1942). This Court “ha[s] defined ‘substantial

evidence,’ in the context of a criminal action, as that evidence

which ‘a reasonable finder of fact could accept as adequate and

sufficient to support a conclusion of a defendant’s guilt beyond a

reasonable doubt.’” United States v. Newsome, 322 F.3d 328, 333

(4th Cir. 2003) (quoting United States v. Burgos, 94 F.3d 849,

862-63 (4th Cir. 1996) (en banc)). This Court “must consider

circumstantial as well as direct evidence, and allow the Government

the benefit of all reasonable inferences from the facts proven to

those sought to be established.” United States v. Tresvant, 677

F.2d 1018, 1021 (4th Cir. 1982). With these standards in mind, and

after reviewing the record, we conclude that the evidence was

sufficient to support Jean’s convictions.

In his pro se supplemental brief, Jean challenges whether

various testimony presented at trial was erroneously admitted.

Because Jean did not raise these objections at trial, we review

for plain error. Fed. R. Crim. P. 52(b); United States v. Olano,

507 U.S. 725, 731-32 (1993). We find no plain error as to the

various evidentiary issues Jean asserts in his pro se brief.

Jean further questions whether trial counsel provided

ineffective assistance of counsel by failing to object to the

evidence admitted at trial that Jean assigns as error. Claims of

ineffective assistance generally are not cognizable on direct

appeal, but should be asserted on collateral review. Only if

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ineffective assistance is conclusively established on the face of

the record should such claims be entertained on direct appeal.

United States v. Richardson, 195 F.3d 192, 198 (4th Cir. 1999).

Because ineffective assistance is not conclusively shown on the

face of the record, we decline to consider this claim on direct

appeal. Jean may assert this claim on collateral review.

Finally, Jean argues that he should be resentenced in

light of United States v. Booker, 125 S. Ct. 738 (2005), because

his sentence was enhanced on judicially found facts. Specifically,

Jean objects to the application of a three-level enhancement for

having a supervisory or managerial role in the offense, pursuant to

U.S. Sentencing Guidelines Manual § 3B1.1(b) (2002). Following the

Supreme Court’s decisions in Booker, this Court held, in United

States v. Hughes, 401 F.3d 540 (4th Cir. 2005), that a sentence

that is impermissibly enhanced based on facts found by the court

constitutes plain error that affects the defendant’s substantial

rights and warrants vacating the sentence and remanding for

resentencing under Booker. Hughes, 401 F.3d at 546-56 (citing

Olano, 507 U.S. at 731-32). Because Jean’s enhancement occurred

under the mandatory guidelines scheme and affected his substantial

rights, as it resulted in a higher guidelines range, we find the

district court committed plain error in sentencing him.1 See

1
Just as we noted in Hughes, we offer no criticism of the
district court, who followed the law and procedure in effect when
Jean was sentenced. See generally Johnson v. United States, 520

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Hughes, 401 F.3d at 546-56. We therefore vacate Jean’s sentence

and remand for resentencing.

As required by Anders, we have examined the entire record

in this case and found no other error. Accordingly, we affirm

Jean’s convictions, vacate the sentence imposed by the district

court, and remand for resentencing consistent with Booker and

Hughes.2 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 IN PART, AND REMANDED

U.S. 461, 468 (1997) (stating that an error is “plain” if “the law
at the time of trial was settled and clearly contrary to the law at
the time of appeal”).
2
Although the Sentencing Guidelines are no longer mandatory,
Booker makes clear that a sentencing court must still “consult
[the] Guidelines and take them into account when sentencing.” 125
S. Ct. at 767. On remand, the district court should first
determine the appropriate sentencing range under the Guidelines,
making all factual findings appropriate for that determination.
See United States v. Hughes, 401 F.3d 540, 546 (4th Cir. 2005)
(applying Booker on plain error review). The court should consider
this sentencing range along with the other factors described in 18
U.S.C. § 3553(a) (2000), and then impose a sentence. Id. If that
sentence falls outside the Guidelines range, the court should
explain its reasons for the departure as required by 18 U.S.C.
§ 3553(c)(2) (2000). Id. The sentence must be “within the
statutorily prescribed range and . . . reasonable.” Id. at 546-47.

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