United States v. Hammonds , 139 F. App'x 486 ( 2005 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4303
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
MICHAEL DANIEL HAMMONDS,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Rock Hill. Cameron McGowan Currie, District
Judge. (CR-02-535)
Submitted: June 10, 2005 Decided: July 13, 2005
Before LUTTIG, WILLIAMS, and GREGORY, Circuit Judges.
Affirmed in part; vacated and remanded in part by unpublished per
curiam opinion.
William N. Nettles, Columbia, South Carolina, for Appellant. J.
Strom Thurmond, Jr., United States Attorney, Rose Mary Parham,
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Unpublished opinions are not binding precedent in this circuit.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:
Michael Daniel Hammonds pled guilty to armed robbery in
violation of 18 U.S.C. §§ 1951(a), 2 (2000) (“Count One”); armed
robbery in violation of 18 U.S.C. § 2113(a), (d) (2000) (“Count
Three”); and, attempted armed robbery in violation of 18 U.S.C.
§ 2113(a) (2000) (“Count Six”). The district court sentenced
Hammonds to the statutory maximum on each count; 240 months’
imprisonment for Counts One and Six and 300 months’ imprisonment
for Count Three. This sentence was based, in part, on the court's
findings concerning characteristics of the offense and Hammonds’
prior criminal history.
Citing Blakely v. Washington, 124 S. Ct. 2531 (2004),
Hammonds asserts for the first time on appeal that his sentence is
unconstitutional.1 Specifically, Hammonds challenges each of the
enhancements applied to his sentence. Hammonds appeals the two-
level increase that was applied because property of a financial
institution was taken or was intended to be taken; the six-level
increase that was applied because the court found that a firearm
1
On appeal, Hammonds also appears to assert claims of
ineffective assistance of counsel, which are generally not
cognizable on direct appeal. To allow for adequate development of
a record, Hammonds must bring such claims in a 28 U.S.C. § 2255(2000) motion, unless the record conclusively establishes
ineffective assistance. United States v. Richardson, 195 F.3d 192,
198 (4th Cir. 1999); United States v. King, 119 F.3d 290, 295 (4th
Cir. 1997). We find that Hammonds has failed to meet the high
burden necessary to raise ineffective assistance of counsel on
direct appeal.
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was used in the commission of the offense; the two-level increase
that was applied because individuals were physically restrained to
facilitate the commission of the crime or his escape; and the two-
level increase that was applied because the loss in Count Three
exceeded $50,000.
In United States v. Booker, 125 S. Ct. 738 (2005), the
Supreme Court held that the federal Sentencing Guidelines, under
which courts were required to impose sentencing enhancements based
on facts found by the court by a preponderance of the evidence,
violated the Sixth Amendment because of their mandatory nature.
Id. at 746, 750 (Stevens, J., opinion of the Court). The Court
remedied the constitutional violation by making the Guidelines
advisory through the removal of two statutory provisions that had
rendered them mandatory. Id. at 746 (Stevens, J., opinion of the
Court); id. at 756-57 (Breyer, J., opinion of the Court). Although
Hammonds did not raise this Sixth Amendment challenge at
sentencing, this court has held that a mandatory enhancement based
on judicial factfinding supported by a preponderance of the
evidence constitutes plain error warranting correction. United
States v. Hughes, 401 F.3d 540, 547-48 (4th Cir.2005) (citing
United States v. Olano, 507 U.S. 725, 731-32 (1993)).
Based on a careful review of the record, we find that
Hammonds was charged in the second superseding indictment with
and/or admitted to the facts underlying his sentencing enhancements
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based on (1) property taken from a financial institution; (2) the
amount of money taken from the financial institution; and, (3) the
physical restraint of employees to facilitate the commission of the
crime or his escape. Nevertheless, Hammonds also disputes the six-
level enhancement that was applied to his sentence for the use of
a “firearm,” stating that a toy weapon and a BB gun were actually
used in the commission of the robberies. At sentencing, the
district court found, by a preponderance of the evidence, that the
weapon used in the robberies was a firearm and not a BB gun. The
court was persuaded by the testimony of the bank tellers, bank
surveillance photographs, and evidence obtained from a pattern of
robberies that occurred prior to the instant appeal. In light of
Booker and Hughes, we therefore find that the district court
plainly erred in sentencing Hammonds.2
Accordingly, we affirm Hammonds’ conviction, but vacate
his sentence and remand for proceedings consistent with Hughes.3
2
We of course offer no criticism of the district judge, who
followed the law and procedure in effect at the time of Hammonds’
sentencing.
3
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. § 3553(a)
(2000) and then impose a sentence. Id. If that sentence falls
outside the Guidelines range, the court should explain its reasons
for the departure as required by 18 U.S.C. § 3553(c)(2). Id. The
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Id. at 546 (citing Booker, 125 S. Ct. at 764-65, 767 (Breyer, J.,
opinion of the 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 IN PART;
VACATED AND REMANDED IN PART
sentence must be "within the statutorily prescribed range and . .
. reasonable." Id. at 547.
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