United States v. Sander , 178 F. App'x 221 ( 2006 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4648
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
DANA SANDER,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. William L. Osteen, District
Judge. (CR-03-142)
Submitted: March 29, 2006 Decided: April 27, 2006
Before LUTTIG and KING, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Thomas N. Cochran, Assistant Federal Public Defender, Greensboro,
North Carolina, for Appellant. Anna Mills Wagoner, United States
Attorney, L. Patrick Auld, Assistant United States Attorney,
Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Dana Sander pled guilty to conspiracy to distribute more
than 50 grams of cocaine base (crack), 21 U.S.C. § 846 (2000), and
was sentenced initially to a term of 210 months imprisonment. In
her initial appeal, Sander challenged the district court’s
determination that she was responsible for 145 grams of crack. We
affirmed her sentence, United States v. Calloway, 108 F. App’x 810
(4th Cir. 2004) (No. 03-4906), but granted rehearing, vacated the
sentence, and remanded for resentencing in accordance with United
States v. Booker, 543 U.S. 220 (2005), and United States v. Hughes,
410 F.3d 540 (4th Cir. 2005). On remand, the district court again
found that Sander was responsible for 145 grams of crack,* and
sentenced her to a term of 160 months imprisonment. In this
appeal, Sander again challenges her sentence, contending that the
district court violated this court’s remand order and the Sixth
Amendment by determining the drug quantity by a preponderance of
the evidence. Sander also argues that the district court’s finding
was clearly erroneous. We affirm.
The Supreme Court held in Booker that the mandatory
manner in which the federal sentencing guidelines required courts
to impose sentencing enhancements based on facts found by the court
*
The court eliminated a two-level enhancement for possession
of a dangerous weapon, USSG § 2D1.1(b)(1), refused Sander a minor
role adjustment, USSG § 3B1.2, and gave her a three-level
adjustment for acceptance of responsibility, USSG § 3E1.1. The
advisory guideline range was 151-188 months.
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by a preponderance of the evidence violated the Sixth Amendment.
The Court remedied the constitutional violation by making the
guidelines advisory. Hughes, 401 F.3d at 546 (citing Booker, 543
U.S. at 245). After Booker, sentencing courts must calculate the
appropriate guideline range after making findings of fact, consider
the range in conjunction with other relevant factors under the
guidelines and 18 U.S.C.A. § 3553(a) (West 2000 & Supp. 2005), and
impose a sentence. Hughes, 401 F.3d at 546. This court will
affirm the sentence if it is “within the statutorily prescribed
range . . . and is reasonable.” Id. at 546-47.
The district court did not err on remand in using the
preponderance of the evidence standard to assess drug quantity
while applying the guidelines as advisory. See United States v.
Dalton, 409 F.3d 1247, 1252 (10th Cir. 2005)(Booker’s remedy
demonstrates that judicial fact finding by a preponderance of the
evidence is unconstitutional only when it results in a mandatory
increase in the defendant’s sentence); United States v. Mares, 402
F.3d 511, 519 (5th Cir.), cert. denied, 126 S. Ct. 43 (2005)
(same).
Although Sander relies on United States v. Collins, 415
F.3d 304 (4th Cir. 2005), Collins is readily distinguishable.
Collins was convicted of conspiracy to distribute more than fifty
grams of crack; however, the district court did not instruct the
jury to determine the quantity of crack attributable to Collins
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individually as required under Apprendi v. New Jersey, 530 U.S. 466(2000), and United States v. Promise, 255 F.3d 150 (4th Cir. 2001).
Collins, 415 F.3d at 314. The district court then compounded the
error by attributing to Collins for sentencing purposes the amount
of crack distributed by the whole conspiracy and applying the
mandatory minimum ten-year sentence prescribed in 21 U.S.C.A.
§ 841(b)(1)(A) (West 1999 & Supp. 2005). Id.. In contrast, Sander
pled guilty to conspiracy to distribute more than fifty grams of
crack, reserving her right to contest the quantity of crack
attributed to her for sentencing purposes. On remand, the district
court cured the Sixth Amendment error that occurred in the first
sentencing by making its fact findings within the context of an
advisory guidelines system. For the reasons we explained in
Sander’s first appeal, the district court did not clearly err in
finding that Sander was responsible for 145 grams of crack.
We therefore affirm the sentence imposed by the district
court. 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
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