United States v. Slusarczyk , 141 F. App'x 108 ( 2005 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4063
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ROBERT SLUSARCZYK, JR.,
Defendant - Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Huntington. Joseph Robert Goodwin,
District Judge. (CR-03-102)
Submitted: May 9, 2005 Decided: July 28, 2005
Before LUTTIG, MOTZ, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Jacqueline A. Hallinan, HALLINAN LAW OFFICES, P.L.L.C., Charleston,
West Virginia, for Appellant. Kasey Warner, United State Attorney,
Stephanie L. Haines, Assistant United States Attorney, Huntington,
West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Robert Slusarczyk, Jr. appeals his conviction and 200
month sentence after he pleaded guilty to one count of possession
of a firearm after having been convicted of a crime punishable by
more than one year of imprisonment, in violation of 18 U.S.C.
§ 922(g)(1) (2000). Counsel has filed a brief in accordance with
Anders v. California, 386 U.S. 738 (1967), raising one potential
issue but stating that, in her view, there are no meritorious
grounds for appeal. Slusarczyk was notified of his right to file
a pro se supplemental brief, but has not filed a brief. After the
Supreme Court issued its decision in United States v. Booker, 125
S. Ct. 738 (2005), counsel for Slusarczyk filed a supplemental
brief and a motion to remand for resentencing. The Government
responded that it did not oppose remand. Because we find no plain
error in the determination or imposition of Slusarczyk’s sentence,
we deny the motion to remand and affirm.
In Booker, the Supreme Court applied the rationale of
Blakely v. Washington, 124 S. Ct. 2531 (2004), to the federal
sentencing guidelines and held that the mandatory guidelines scheme
that provided for sentence enhancements based on facts found by the
court violated the Sixth Amendment. Booker, 125 S. Ct. at 746-48,
755-56 (Stevens, J., opinion of the Court). The Court remedied the
constitutional violation by severing and excising the statutory
provisions that mandate sentencing and appellate review under the
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guidelines, thus making the guidelines advisory. Id. at 756-57
(Breyer, J., opinion of the Court). Subsequently, in United States
v. Hughes, 401 F.3d 540, 546 (4th Cir. 2005), this court 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 by a jury (or, in a guilty plea case, admitted by the
defendant), constitutes plain error that 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. The court 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. 2004), and impose a
sentence. If the court imposes a sentence outside the guideline
range, the district court should state its reasons for doing so.
Id. at 546.
Because Slusarczyk did not object to the sentencing range
of 188 to 235 months’ imprisonment set forth in the presentence
report ("PSR") and adopted by the district court, this Court’s
review of the district court’s sentence is for plain error. United
States v. Olano, 507 U.S. 725, 732 (1993); Hughes, 401 F.3d at 547.
Under the plain error standard, Slusarczyk must show: (1) there was
error; (2) the error was plain; and (3) the error affected his
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substantial rights. Olano, 507 U.S. at 732-34. Even when these
conditions are satisfied, this court may exercise its discretion to
notice the error only if the error "seriously affect[s] the
fairness, integrity or public reputation of judicial proceedings."
Id. at 736. (internal quotation marks omitted).
In determining whether error occurred in Slusarczyk’s
sentencing, we note that 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, . . . and an error in failing to treat the guidelines as
advisory.” Hughes, 401 F.3d at 552. We first consider whether
Slusarczyk’s sentence was affected by a Sixth Amendment error.
Slusarczyk’s base offense level was calculated at thirty-four based
on his status as an armed career criminal,1 and the fact that he
possessed firearms in connection with a crime of violence.2
Pursuant to U.S. Sentencing Guidelines Manual (“USSG”) § 4B1.4(a)
(2003), an individual subject to an enhanced sentence under 18
U.S.C.A. § 924(e) (West 2000 & Supp. 2004), is an armed career
criminal. Section 924(e) provides as follows: "in the case of a
1
Slusarczyk has never contested any aspect of the
determination that he qualified for sentencing as an armed career
criminal.
2
If the enhancement for possession of the firearm in
conjunction with a crime of violence did not apply, Slusarczyk’s
base offense level under the armed career criminal classification
would be thirty-three, rather than thirty-four. USSG
4B1.4(b)(3)(B).
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person who violates [§] 922(g) . . . and has three previous
convictions . . . for a violent felony or a serious drug offense,
or both, committed on occasions different from one another . . .
such person shall be . . . imprisoned not less than fifteen years.
. . ." The indictment alleged that, at the time of the crime in
question, Slusarczyk had previously been convicted of three
aggravated burglaries and one robbery. The PSR reveals that
Slusarczyk has five prior convictions for burglary, an offense
explicitly deemed a "violent felony" for purposes of § 924(e), and
one conviction for robbery. See 18 U.S.C.A. § 924(e)(2)(B)(ii).
We thus conclude that Slusarczyk’s classification as an armed
career criminal did not violate Slusarczyk’s Sixth Amendment
rights, as the facts supporting that classification were charged in
the indictment and acknowledged in Slusarczyk’s guilty plea.
Pursuant to USSG § 4B1.4(b)(3)(A), the offense level for
an armed career criminal who "used or possessed the firearm . . .
in connection with . . . a crime of violence . . ." is thirty-four.
Section 4B1.2(a) specifically lists burglary of a dwelling as a
crime of violence. The criminal history category for an armed
career criminal who "used or possessed the firearm . . . in
connection with . . . a crime or violence. . . ." is Category VI.
USSG § 4B1.4(c)(2).3 Slusarczyk received a three-level reduction
3
Slusarczyk’s extensive criminal history resulted in a total
of thirty criminal history points, which yields a criminal history
category of VI regardless of his status as an armed career
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for acceptance of responsibility, resulting in a total offense
level of thirty-one. This offense level, combined with his
criminal history category of VI, yielded a sentencing range of 188
to 235 months’ imprisonment. See USSG Ch. 5, Pt. A.
The facts supporting the one-level enhancement for
possession of the firearm in connection with a burglary were not
charged in the indictment. If this enhancement were removed,
Slusarczyk’s total offense level would be thirty, and his
sentencing range 168 to 210 months. At the plea hearing, however,
Slusarczyk stated that he and two other people burglarized houses
and that he knew that an accomplice put a stolen gun in the trunk
of Slusarczyk’s vehicle. In addition, Slusarczyk acknowledged the
truth of the prosecutor’s summary of the factual basis for the plea
that included a description of the burglaries and theft of
firearms. Moreover, the imposed sentence of 200 months
imprisonment is within the 168 to 210 month range that would apply
in the absence of the one-level enhancement. We conclude that the
one-level enhancement was based upon facts admitted by Slusarczyk,
and he therefore suffered no Sixth Amendment violation in the
calculation of his sentencing range.
In his supplemental brief, Slusarczyk asserts error in
the application of the guidelines as a mandatory sentencing
determinant. In United States v. White, 405 F.3d 208 (4th Cir.
criminal.
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2005), this court determined that “even in the absence of a Sixth
Amendment violation, the imposition of a sentence under the former
mandatory guidelines regime rather than under the advisory regime
outlined in Booker is error” that is plain. Id. at 216-17. The
court also concluded that, to satisfy the third prong of the plain
error test, an appellant must demonstrate actual prejudice. Id. at
217-23. White could not satisfy this requirement, however, because
he could not establish that the application of the guidelines as
mandatory had an effect on “the district court’s selection of the
sentence imposed.” Id. at 223 (quoting Williams v. United States,
503 U.S. 193, 203 (1992)).
Slusarczyk asserts that the district court indicated that
it would possibly have imposed a lesser sentence under an advisory
scheme, based upon comments by the district court after
Slusarczyk’s sentence was announced. Our review of the district
court’s remarks leads us to conclude that the district court’s
statements do not support Slusarczyk’s argument, but would rather
require speculation by this Court to determine whether the district
court would have imposed a lesser sentence by treating the
guidelines as advisory. White, 405 F.3d at 223. Accordingly,
Slusarczyk cannot demonstrate that the district court’s error4 in
4
We of course offer no criticism of the district court judge,
who followed the law and procedure in effect at the time of
Slusarczyk’s sentencing.
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sentencing him pursuant to a mandatory guidelines scheme affected
his substantial rights.
As required by Anders, we have examined the entire record
and find no meritorious issues for appeal. Accordingly, we deny
Slusarczyk’s motion to remand and affirm his conviction and
sentence. This court requires that counsel inform her client, in
writing, of his right to petition the Supreme Court of the United
States for further review. If the client requests that a petition
be filed, but counsel believes that such a petition would be
frivolous, then counsel may move in this court for leave to
withdraw from representation. Counsel’s motion must state that a
copy thereof was served on the client. 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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