United States v. Johnson , 166 F. App'x 85 ( 2006 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 03-4105
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
WILLIAM L. JOHNSON, a/k/a Buddy,
Defendant - Appellant.
On Remand from the United States Supreme Court.
(S. Ct. No. 04-8073)
Submitted: September 30, 2005 Decided: February 10, 2006
Before WIDENER and LUTTIG, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Vacated and remanded for resentencing by unpublished per curiam
opinion.
Barron M. Helgoe, VICTOR VICTOR & HELGOE, LLP, Charleston, West
Virginia, for Appellant. Kasey Warner, United States Attorney,
Miller A. Bushong, III, Assistant United States Attorney, Beckley,
West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
William L. Johnson pled guilty to distribution of cocaine
base (crack) and was sentenced as a career offender to 151 months
imprisonment. We affirmed his sentence. United States v. Johnson,
No. 03-4105, 2004 WL 2368106 (4th Cir. Oct. 19, 2004)
(unpublished). The Supreme Court subsequently granted Johnson’s
petition for certiorari, vacated this court’s judgment, and
remanded his case for further proceedings in light of United
States v. Booker, 125 S. Ct. 738 (2005).
Johnson’s sentence was imposed prior to the decisions in
Booker and its predecessor, Blakely v. Washington, 542 U.S. 296(2004), and he did not raise objections to his sentence based on
the mandatory nature of the sentencing guidelines or the district
court’s application of sentencing enhancements based on facts not
admitted by him or found by the jury beyond a reasonable doubt.
Therefore, we review his sentence for plain error. United
States v. Hughes, 401 F.3d 540, 546-60 (4th Cir. 2005).
In a supplemental brief filed at this court’s direction
after the Supreme Court remanded his case, Johnson contends that
his sentence violated the Sixth Amendment and that the district
court’s comments at the sentencing hearing disclose that it would
have imposed a lower sentence under an advisory guidelines scheme.
The government maintains that Johnson’s career offender sentence
did not violate the Sixth Amendment, but concedes that the record
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indicates the district court might have imposed a lower sentence
had it had discretion to do so.
Johnson contends that, under Booker, the district court
violated his Sixth Amendment rights by making impermissible factual
findings to classify him as a career offender. We are satisfied
that his claim is foreclosed by United States v. Collins, 412 F.3d
515, 521-23 (4th Cir. 2005) (holding that application of career
offender enhancement falls within exception for prior convictions
where facts are undisputed, making it unnecessary for district
court to engage in further fact finding about prior convictions);
see Shepard v. United States, 125 S. Ct. 1254 (2005) (holding that
a court’s inquiry as to disputed facts in connection with a prior
conviction is limited to the terms of the charging document, a plea
agreement, a transcript of the plea colloquy, or a comparable
judicial record).
Johnson did not dispute that he satisfied the
requirements for career offender status. Moreover, the district
court could determine from the judicial record of Johnson’s prior
drug convictions that he had the necessary two prior felony
convictions for a controlled substance offense. See USSG
§ 4B1.2(b). Therefore, we conclude that no Sixth Amendment
violation occurred.
As Johnson argues and the government concedes, the
district court’s comments at the sentencing hearing reveal that it
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was dissatisfied with the constraints of the mandatory guideline
system and unhappy with the length of the guideline sentence. The
record thus provides a nonspeculative basis for concluding that the
mandatory nature of the guidelines prevented the district court
from imposing a sentence below the guideline range. Accordingly,
we conclude that Johnson has made the necessary showing under
United States v. White, 405 F.3d 208, 223-24 (4th Cir. 2005), and
resentencing is required.
For the reasons discussed, we vacate the sentence and
remand for resentencing consistent with Booker.* 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. 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. Id. If that sentence falls
outside the guidelines range, the court should explain its reasons
*
Just 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 Johnson’s sentencing.” Hughes,
401 F.3d at 545 n.4. See generally Johnson v. United States, 520
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”).
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for the departure as required by 18 U.S.C.A. § 3553(c)(2). Id.The sentence must be “within the statutorily prescribed range and
. . . reasonable.” Id. 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
FOR RESENTENCING
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