US v. Mobley

Filing 920060816

Opinion

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 05-4215

UNITED STATES OF AMERICA, Plaintiff - Appellee, versus THURMAN MOBLEY, Defendant - Appellant.

Appeal from the United States District Court for the Western District of North Carolina, at Charlotte. Richard L. Voorhees, District Judge. (CR-99-165-10-V)

Submitted:

March 31, 2006

Decided:

August 16, 2006

Before MICHAEL, GREGORY, and SHEDD, Circuit Judges.

Vacated and remanded by unpublished per curiam opinion.

Joel Merritt Wagoner, LAW OFFICE OF WILLIAM T. PEREGOY, Wilmington, North Carolina, for Appellant. Gretchen C. F. Shappert, United States Attorney, Charlotte, North Carolina; Amy E. Ray, Assistant United States Attorney, Asheville, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

PER CURIAM: After a jury trial, Thurman Mobley was convicted of conspiracy to possess with intent to distribute and to distribute crack cocaine, and conspiracy to use, carry, and possess firearms during and in relation to a drug trafficking offense. On a special

verdict form, the jury found that the drug conspiracy involved "at least 5 grams but less than 50 grams of cocaine base." The

district court found that Mobley was responsible for between 35 and 50 grams of cocaine base and sentenced him to 170 months in prison. Mobley appeals his sentence, asserting that it violates the Sixth Amendment. We agree and therefore vacate his sentence and remand

for resentencing. Citing United States v. Booker, 543 U.S. 220 (2005), Mobley asserts that the district court's finding of thirty-five to fifty grams enhanced his sentence beyond the jury's finding of five to fifty grams, in violation of the Sixth Amendment. Because

Mobley did not raise this issue in the district court, our review is for plain error. See United States v. Hughes, 401 F.3d 540, To demonstrate plain error, a defendant

547-48 (4th Cir. 2005).

must establish that an error occurred, that the error was plain, and that it affected his substantial rights. the defendant establishes these Id. at 547-48. this court If may

requirements,

exercise its discretion to notice the error "only when failure to do so would result in a miscarriage of justice, such as when the

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defendant is actually innocent or the error seriously affects the fairness, integrity or public reputation of judicial proceedings. Id. at 555 (internal quotation marks and citation omitted). In Booker, the Supreme Court held that the mandatory manner in which the federal sentencing guidelines required courts to impose sentencing enhancements based on facts found by the court by a preponderance of the evidence violated the Sixth Amendment. Booker, 543 U.S. at 233-34. The Court remedied the constitutional

violation by making the Guidelines advisory through the removal of two statutory provisions that had rendered them mandatory. Hughes, 401 F.3d at 546-47. Here, the district court sentenced Mobley under the mandatory federal sentencing guidelines and based on drug

quantities found by a preponderance of the evidence.

The jury

found that Mobley was responsible for at least five, but less than fifty grams of crack. This finding encompassed three different

offense levels under the sentencing guidelines, each providing for different sentencing ranges. The district court found, by a

preponderance of the evidence, that Mobley was responsible for at least thirty-five but less than fifty grams of crack. This factual finding placed Mobley in the highest of the three ranges possible under the jury's verdict. increased Mobley's Because the district court's findings beyond that which may have been

sentence

authorized by the jury's findings, we conclude that Mobley's

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sentence was the result of plain error.1

See Booker, 543 U.S. at

233-34; see also United States v. Rhynes, 196 F.3d 207, 238 (4th Cir. 1999), vacated in part on other grounds on reh'g en banc, 218 F.3d 310 (4th Cir. 2000) (holding that when there is a general verdict in a multiple-drug conspiracy, the defendant may be

sentenced only up to the maximum for the least-punished drug offense on which the conspiracy verdict might have been based). Accordingly, although we affirm Mobley's convictions, we vacate his sentence and remand for resentencing consistent with Booker and Hughes.2 facts and legal before We dispense with oral argument because the are and adequately argument presented not in aid the the

contentions the court

materials

would

decisional process. VACATED AND REMANDED

Just as we noted in Hughes, "[w]e of course offer no criticism of the district judge, who followed the law and procedure in effect at the time" of Mobley's sentencing. 401 F.3d at 545 n.4. Although the Guidelines are no longer mandatory, Booker makes clear that a sentencing court must still "consult [the] Guidelines and take them into account when sentencing." 543 U.S. at 264. 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. Hughes, 401 F.3d at 546. If that sentence falls outside the Guidelines range, the court should explain its reasons for the departure as required by 18 U.S.C.A. § 3553(c)(2) (West 2000 & Supp. 2005). Hughes, 401 F.3d at 546. The sentence must be "within the statutorily prescribed range and . . . reasonable." Id. at 547. - 4 2

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