United States v. Williams , 142 F. App'x 161 ( 2005 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 03-4665
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
COLEEN MILLICENT WILLIAMS, a/k/a Millie,
Defendant - Appellant.
No. 04-4082
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
GILBERT GOULBOURNE, a/k/a Carol Angel, a/k/a
Gail Chambers,
Defendant - Appellant.
Appeals from the United States District Court for the District of
South Carolina, at Greenville. Margaret B. Seymour, G. Ross
Anderson, Jr., District Judges. (CR-03-231)
Submitted: June 27, 2005 Decided: July 28, 2005
Before NIEMEYER, LUTTIG, and TRAXLER, Circuit Judges.
Affirmed in part; vacated and remanded in part by unpublished per
curiam opinion.
David W. Plowden, Assistant Federal Public Defender, Greenville
South Carolina; Robert M. Sneed, FOSTER LAW FIRM, Greenville, South
Carolina, for Appellants. Jonathan S. Gasser, Acting United States
Attorney, Isaac Louis Johnson, Jr., Assistant United States
Attorney, Greenville, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
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PER CURIAM:
Gilbert Goulbourne and Coleen Williams appeal their
convictions and sentences for conspiracy to distribute cocaine in
violation of 21 U.S.C. § 846 (2000), and possession with intent to
distribute cocaine in violation of 21 U.S.C. § 841 (2000). We
affirm their convictions, but we vacate their sentences and remand
for resentencing in light of United States v. Booker, 125 S. Ct.
738 (2005), and United States v. Hughes, 401 F.3d 540 (4th Cir.
2005).
Goulbourne and Williams claim that the district court
improperly sentenced them when it imposed a sentence greater than
the maximum authorized by the facts found by the jury alone.
Because they failed to raise this claim below, we review it for
plain error. Hughes, 401 F.3d at 547. The jury convicted
Goulbourne and Williams of responsibility for 500 for or more grams
of cocaine for each count. At sentencing, the district court found
Williams accountable for 2,958.02 grams of cocaine, for a total
offense level of thirty pursuant to U.S. Sentencing Guidelines
Manual § 2D1.1(c)(5) (2002).1 The court held Goulbourne
1
Williams’ presentence report assessed an offense level of 30
based on drug quantity, and added two points for her role in the
offense, for a total offense level of 32. During the sentencing
hearing, the district court stated that it would have assessed four
levels for her role in the offense, but instead would only assess
two levels based on the probation officer’s recommendation. When
the court pronounced sentence, however, it used a total offense
level of 30. There is no explanation in the transcript for this
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accountable for 2,975.06 grams of cocaine and 10.81 grams of
cocaine base, USSG § 2D1.1(c)(5), and assessed an additional four
offense levels for his role in the offense, USSG § 3B1.1(a), for a
total offense level of thirty-four. Given their criminal history
category of I, the district court’s drug quantity factual finding
increased Williams’ sentencing range from 63-78 months to 97-121
months. The drug quantity and role in the offense findings
increased Goulbourne’s sentencing range from 63-73 months to 151-
188 months. Goulbourne’s 188 month sentence and Williams’ 121
month sentence thus exceeded the sentences that could have been
imposed based only on the facts found by the jury. The district
court thus erred in basing their sentence on judge-found facts
under a mandatory guidelines regime, and the error was plain.2 Id.
at 547-48. Because Goulbourne’s and Williams’ sentences were
longer than what could have been imposed based on the jury’s
verdict alone, the error affected their substantial rights, id. at
548, and we will notice the error, id. at 555. Therefore,
Goulbourne and Williams must be resentenced.
Although the Sentencing Guidelines are no longer
mandatory, Booker makes clear that a sentencing court must still
discrepancy.
2
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 Williams’ and
Goulbourne’s sentencing.
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“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 the factual findings appropriate for that
determination. See 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) (2000). Id. The sentence must
be “within the statutorily prescribed range and . . . reasonable.”
Id. at 546-47.
We affirm Goulbourne’s and Williams’ convictions. We
deny Goulbourne’s motion for leave to file a pro se supplemental
brief because the issue he seeks to raise in that brief was
adequately raised in his formal brief. In light of Booker and
Hughes, we vacate Goulbourne’s and Williams’ sentences and remand
for resentencing. We dispense with oral argument because the facts
and legal contentions are adequately presented in the materials
before the court and oral argument would not aid the decisional
process.
AFFIRMED IN PART; VACATED
AND REMANDED IN PART
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