US v. Butler

Filing 920060626

Opinion

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 04-4167

UNITED STATES OF AMERICA, Plaintiff - Appellee, versus JAMES BUTLER, Defendant - Appellant.

Appeal from the United States District Court for the District of South Carolina, at Florence. C. Weston Houck, Senior District Judge. (CR-03-657)

Submitted:

May 31, 2006

Decided:

June 26, 2006

Before MICHAEL, KING, and GREGORY, Circuit Judges.

Vacated and remanded by unpublished per curiam opinion.

James T. McBratney, Jr., MCBRATNEY LAW FIRM, P.A., Florence, South Carolina, for Appellant. J. Strom Thurmond, Jr., United States Attorney, William E. Day, II, Assistant United States Attorney, Florence, South Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

PER CURIAM: James Butler pled guilty, pursuant to a written plea agreement, to fraudulent use of unauthorized access devices. Prior to the Supreme Court's decision in United States v. Booker, 543 U.S. 220 (2005), the district court sentenced Butler to thirty-four months' imprisonment. On appeal, Butler asserts that his sentence We agree, and we therefore vacate

violated the Sixth Amendment.

Butler's sentence and remand for resentencing. Because Butler did not raise an objection below based on the Sixth Amendment, we review for plain error. Hughes, 401 F.3d 540, 547 (4th Cir. 2005). increased Butler's to offense law level for United States v.

The district court to another

relocating see U.S.

jurisdiction

evade

enforcement,

Sentencing

Guidelines Manual § 2B1.1(b)(8) (2002), and for trafficking or transferring unauthorized access devices or unlawfully producing or possessing identification, see USSG § 2B1.1(b)(9). Butler did not admit to the facts supporting these enhancements.1 Without these

judicially-determined sentencing enhancements, Butler's offense level would have been 10.2 Because he was in criminal history

Butler objected to the § 2B1.1(b)(8) enhancement. Although he did not object to the § 2B1.1(b)(9) enhancement, a defendant's failure to object to the facts in his PSR does not constitute a Booker admission. See United States v. Milam, 443 F.3d 382 (4th Cir. 2006). While Butler did receive a reduction for acceptance of responsibility, when determining if Booker error occurred, we look to the guideline range based on admitted conduct or facts found by - 2 2

1

category VI, his guideline range would have been twenty-four to thirty months in prison. His thirty-four-month sentence imposed

under the mandatory guidelines scheme was therefore longer than the sentence the district court could have imposed without violating the Sixth Amendment. We therefore conclude that plain error

affecting Butler's substantial rights occurred in his sentencing.3 Hughes, 401 F.3d at 550-51. Accordingly, we vacate Butler's sentence and remand for resentencing. Although the Sentencing Guidelines are no longer

mandatory, Booker makes it clear that a sentencing court still must "consult [the] Guidelines and take them into account when

sentencing."

Booker, 543 U.S. at 244-45.

On remand, the district

court should first determine the appropriate sentencing range under the Guidelines, making all factual findings appropriate for that determination. Hughes, 401 F.3d at 546. The court should consider this sentencing range, along with the other factors described in 18 U.S.C.A. § 3553(a) (West 2000 & Supp. 2005), and then impose a sentence. If that sentence falls outside the Guideline range, the

court should explain the reasons for the departure as required by 18 U.S.C.A. § 3553(c)(2) (West 2000 & Supp. 2005). Hughes, 401

a jury, and disregard any reduction for acceptance of responsibility. See United States v. Evans, 416 F.3d 298, 300 n.4 (4th Cir. 2005). As we noted in Hughes, "[w]e of course offer no criticism of the district court judge who followed the law and procedure in effect at the time" of Butler's sentencing. 401 F.3d at 545 n.4. - 3 3

F.3d

at

546.

The

sentence

must

be

"within Id.

the

statutorily

prescribed range and . . . reasonable."

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.

VACATED AND REMANDED

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