United States v. Noe , 191 F. App'x 216 ( 2006 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-5094
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
PAUL H. NOE, a/k/a Paul Noe Randall,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Columbia. Joseph F. Anderson, Jr., Chief
District Judge. (CR-02-96)
Submitted: June 28, 2006 Decided: July 26, 2006
Before MOTZ, KING, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Johnny E. Watson, Sr., Columbia, South Carolina, for Appellant.
Reginald I. Lloyd, United States Attorney, Kevin F. McDonald,
Assistant United States Attorney, Columbia, South Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
This case is before the court after a remand to the
district court for resentencing in light of United States v.
Booker, 543 U.S. 220 (2005), and United States v. Hughes, 401 F.3d
540, 546 (4th Cir. 2005). Paul H. Noe (a.k.a. Paul Randall) was
convicted by a jury of conspiracy to commit wire fraud, wire fraud,
and inducing the victim of a scheme to defraud to travel in
interstate commerce, 18 U.S.C. §§ 371, 1343, 2314 (2000). He was
originally sentenced to 78 months of imprisonment, three years of
supervised release, and ordered to pay $645,708.20 in restitution.
We affirmed Noe’s convictions but vacated his sentence and remanded
to the district court for resentencing in accordance with Booker
and Hughes. See United States v. Noe, No. 04-4047 (4th Cir.
Aug. 10, 2005) (unpublished).
On remand, the district court conducted a resentencing
hearing; Noe did not challenge the district court’s factual
findings in determining the advisory guidelines range. Those
findings supported enhancements for amount of loss, number of
victims, use of “sophisticated means,” and being an organizer or
leader. See U.S. Sentencing Guidelines Manual §§ 2B1.1(b)(1)(H),
2B1.1(b)(2)(A), 2B1.1(b)(8)(C), 3B1.1(a) (2004). Based on a total
offense level of 28 and a criminal history category of I, Noe’s
guidelines sentence range was 78-97 months imprisonment. The
district court again sentenced Noe to 78 months; he appeals.
- 2 -
Noe claims, first, that his Fifth and Sixth Amendment
rights were violated because the court determined by a
preponderance of the evidence--rather than a jury beyond a
reasonable doubt--the factual findings supporting the sentencing
enhancements he received for amount of loss, number of victims, use
of sophisticated means, and being a leader or organizer. After
Booker, a sentencing court is no longer bound by the range
prescribed by the sentencing guidelines. See United States v.
Hughes, 401 F.3d at 546. In a post-Booker sentencing, district
courts must calculate the appropriate guideline range, consider the
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. Id. Contrary to Noe’s assertion, the use of
the preponderance of the evidence standard while applying the
guidelines as advisory does not violate the Sixth Amendment. See
United States v. Morris, 429 F.3d 65, 72 (4th Cir. 2005); see also
United States v. Dalton, 409 F.3d 1247, 1252 (10th Cir. 2005)
(finding that Booker’s remedy demonstrates that judicial fact
finding by a preponderance of the evidence is unconstitutional only
when it results in mandatory increase in defendant’s sentence);
United States v. Mares, 402 F.3d 511, 519 (5th Cir.), cert. denied,
126 S. Ct. 43 (2005) (same). Therefore, Noe’s Fifth and Sixth
Amendment challenges to the calculation of his sentence are without
merit.
- 3 -
Next, Noe contends that the district court gave Noe more
time than was necessary to achieve the dictates of § 3553(a), given
his age and poor health. However, the district court clearly
considered both of these factors. The court took a six-day recess
in order to obtain Noe’s medical records from the Bureau of Prisons
and concluded that he could be properly cared for in prison.
Moreover, Noe’s sentence is presumptively reasonable as it is
within the properly calculated advisory guidelines range and within
the statutory maximum (five years on each of counts one, two, and
four, and ten years on count three). United States v. Green, 436
F.3d 449, 457 (4th Cir.), cert. denied, 126 S. Ct. 2309 (2006). We
find that, because the district court appropriately applied the
guidelines as advisory and properly considered the guideline range
as well as the relevant factors under § 3553(a), Noe’s sentence is
reasonable.
Noe has also filed a motion to file a supplemental pro se
brief in which he addresses counsel’s claims and also asserts that
the sentencing enhancements he received constituted impermissible
“double-counting,” citing Hughes. However, the court in Hughes,
addressing the enhancement for obstruction of justice, noted that
“[a]n enhancement for obstruction of justice constitutes
impermissible double-counting only when the conduct giving rise to
the enhancement is identical to the conduct giving rise to the
underlying conviction.” 401 F.3d at 558. Noe did not receive an
- 4 -
enhancement for obstruction of justice. Therefore, we find that
Noe’s sentencing enhancements did not constitute impermissible
double-counting. Accordingly, we affirm Noe’s sentence.
We grant Noe’s motions to file a pro se supplemental
brief and 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
- 5 -