United States v. Webster , 198 F. App'x 334 ( 2006 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4209
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
CHARLES WILLIE WEBSTER,
Defendant - Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Charleston. John T. Copenhaver, Jr.,
District Judge. (CR-03-218)
Submitted: August 4, 2006 Decided: September 6, 2006
Before TRAXLER, KING, and DUNCAN, Circuit Judges.
Affirmed in part; vacated and remanded in part by unpublished per
curiam opinion.
John G. Hackney, Jr., Charleston, West Virginia, for Appellant.
Steven Ian Loew, OFFICE OF THE UNITED STATES ATTORNEY, Charleston,
West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Charles Willie Webster pled guilty to one count of
firearm possession, in violation of 18 U.S.C. §§ 922(g)(1),
924(a)(2) (2000). The district court determined Webster to be an
armed career criminal, resulting in a fifteen year statutory
mandatory minimum sentence. See 18 U.S.C. § 924(e)(1) (2000).
Adopting the recommendation of the presentence report, the district
court sentenced Webster to 188 months’ imprisonment, which
represented the bottom of the applicable federal sentencing
guidelines range and eight months above the statutory minimum. The
district court noted this was a “terribly long” sentence for
Webster, given his rather advanced age, but stated that it was the
“least [lengthy] sentence available.” Webster appealed,
challenging only his sentence.
Webster moves to remand this case to the district court
for resentencing in light of United States v. Booker, 543 U.S. 220(2005). The Government does not oppose remand for the purposes of
resentencing. In Booker, the Supreme Court held that when a
defendant is sentenced under a mandatory guidelines scheme, “[a]ny
fact (other than a prior conviction) which is necessary to support
a sentence exceeding the maximum authorized by the facts
established by a plea of guilty or a jury verdict must be admitted
by the defendant or proved to a jury beyond a reasonable doubt.”
543 U.S. at 224. Thus, error under the Sixth Amendment occurs when
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the district court imposes a sentence greater than the maximum
permitted based on facts found by a jury or admitted by the
defendant. Id.
Subsequently, in United States v. Hughes, 401 F.3d 540,
546 (4th Cir. 2005), we held that a sentence that was imposed under
the pre-Booker mandatory sentencing scheme and was enhanced based
on facts found by the court, not found by a jury or admitted by the
defendant, constitutes plain error. That error affects the
defendant’s substantial rights and warrants reversal under Booker
when the record does not disclose what discretionary sentence the
district court would have imposed under an advisory guideline
scheme. Hughes, 401 F.3d at 546-56. We directed sentencing courts
to calculate the appropriate guideline range, consider that 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. If the district court imposes a sentence outside the
guideline range, the court should state its reasons for doing so.
Hughes, 401 F.3d at 546; see also United States v. Green, 436 F.3d
449, 455-56 (4th Cir. 2006). Hughes also recognized “that after
Booker, there are two potential errors in a sentence imposed
pursuant to the pre-Booker mandatory guidelines regime: a Sixth
Amendment error, which Hughes raised, and an error in failing to
treat the guidelines as advisory, which Hughes did not raise.”
Hughes, 401 F.3d at 552.
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In United States v. White, 405 F.3d 208 (4th Cir.), cert.
denied, 125 S. Ct. 668 (2005), we held that treating the guidelines
as mandatory in the absence of a Sixth Amendment violation was
plain error in light of Booker. White, 405 F.3d at 216-17. We
declined to presume prejudice in this situation, id. at 217-22,
holding that the “prejudice inquiry, therefore, is . . . whether
after pondering all that happened without stripping the erroneous
action from the whole, . . . the judgment was . . . substantially
swayed by the error.” Id. at 223 (internal quotation marks and
citations omitted). To make this showing, a defendant must
“demonstrate, based on the record, that the treatment of the
guidelines as mandatory caused the district court to impose a
longer sentence than it otherwise would have imposed.” Id. at 224.
In White, because “the record as a whole provide[d] no
nonspeculative basis for concluding that the treatment of the
guidelines as mandatory ‘affect[ed] the district court’s selection
of the sentence imposed,’” id. at 223 (quoting Williams v. United
States, 503 U.S. 193, 203 (1992)), we concluded that the error did
not affect the defendant’s substantial rights and, thus, affirmed
the sentence. White, 405 F.3d at 225; see also United States v.
Collins, 412 F.3d at 524-25 (finding that defendant failed to
demonstrate prejudice from being sentenced under the mandatory
sentencing guidelines).
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Here, the district court did not commit Sixth Amendment
error at sentencing. The record indicates that the district court
properly made an armed career criminal finding under 18 U.S.C.
§ 924(e) (2000). See United States v. Thompson, 421 F.3d 278, 282-
84 (4th Cir. 2005), cert. denied, 126 S. Ct. 1463 (2006).
Moreover, additional fact-finding made by the district court at the
sentencing hearing did not violate the Sixth Amendment. See United
States v. Evans, 416 F.3d 298, 300 n.4 (4th Cir. 2005) (determining
Sixth Amendment error by considering guidelines range based on
facts admitted by defendant without adjusting for acceptance of
responsibility).
Nevertheless, as Webster correctly asserts, the district
court erred in applying the sentencing guidelines as mandatory.1
Furthermore, in light of the court’s expressed concern as to the
length of the sentence required to be imposed by a mandatory
application of the guidelines, there is a nonspeculative basis on
which we may conclude that the district court would have sentenced
Webster differently had the court proceeded under an advisory
guidelines scheme. See White, 405 F.3d at 223 (finding that
defendant failed to meet burden of actual prejudice where “the
1
Just as we noted in Hughes, 401 F.3d at 545 n.4, “[w]e of
course offer no criticism of the district judge, who followed the
law and procedure in effect at the time” of Webster’s sentencing.
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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district court made certain statements suggesting that it was
content to sentence [the defendant] within the guideline range.”).
Accordingly, Webster has established plain error in sentencing, and
we vacate the sentence and remand for resentencing under Booker and
White.
Finally, Webster has filed a letter docketed as a pro se
supplemental brief and an implied motion to submit the brief. We
grant Webster’s implied motion to submit the pro se supplemental
brief, but we find his contentions meritless.2 We deny Webster’s
motion to permit an amicus party to file a brief in this case.
In sum, we affirm Webster’s conviction, vacate his
sentence, and grant his motion to remand for resentencing in light
of Booker. 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 AND REMANDED IN PART
2
By his guilty plea, Webster admitted the material elements of
the offense. McCarthy v. United States, 394 U.S. 459, 466 (1969).
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