United States v. Scales , 141 F. App'x 167 ( 2005 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4724
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
RONALD LEONARD SCALES,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. William L. Osteen, District
Judge. (CR-03-475)
Submitted: August 5, 2005 Decided: August 17, 2005
Before NIEMEYER and SHEDD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Louis C. Allen, III, Federal Public Defender, Gregory Davis,
Assistant Federal Public Defender, Greensboro, North Carolina, for
Appellant. Anna Mills Wagoner, United States Attorney, Robert A.
J. Lang, Assistant United States Attorney, Greensboro, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Ronald Leonard Scales appeals his seventy-two month
sentence imposed following his guilty plea to being a felon in
possession of a firearm, in violation of 18 U.S.C. § 922(g)(1)
(2000). On appeal, Scales asserts that the district court’s
disregard of the federal sentencing guidelines runs afoul of our
decision in United States v. Hammoud, 378 F.3d 426 (4th Cir.)
(order) (recommending sentencing courts announce an alternative
sentence pursuant to 18 U.S.C.A. § 3553(a), which treats the
federal sentencing guidelines as advisory only), opinion issued by
381 F.3d 316 (4th Cir. 2004) (en banc), vacated, 125 S. Ct. 1051(2005).
However, after both parties filed briefs, Hammoud was
overruled by the Supreme Court’s decision in United States v.
Booker, 125 S. Ct. 738 (2005), which held that the mandatory manner
in which the federal sentencing guidelines required courts to
impose sentencing enhancements based on facts found by the court by
a preponderance of the evidence violated the Sixth Amendment.
Accordingly, we conclude that the district court’s failure to
comply with a case that has now been overruled does not constitute
error on appeal, plain or otherwise.
Moreover, we note that as required under Booker, the
district court treated the guidelines as advisory, and accounted
for arguments that would not have been allowed under a mandatory
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guidelines scheme. Accordingly, we find that because the district
court imposed a sentence within the now-advisory guidelines range
and below the ten-year statutory maximum for the offense, the
sentence was reasonable. Cf. United States v. Hughes, 401 F.3d
540, 546-47 (4th Cir. 2005) (citing Booker, 125 S. Ct. at 764-65,
767) (noting after Booker, sentencing courts should determine the
sentencing range under the guidelines, consider the other factors
under § 3553(a), and impose a reasonable sentence within the
statutory maximum). We therefore affirm Scales’ conviction and
sentence. 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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