United States v. Gillian , 158 F. App'x 434 ( 2005 )


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  •                                UNPUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    No. 03-4964
    UNITED STATES OF AMERICA,
    Plaintiff - Appellee,
    versus
    BOBBY GILLIAN,
    Defendant - Appellant.
    On Remand from the United States Supreme Court.
    (S. Ct. No. 04-6186)
    Submitted:   October 7, 2005              Decided:   December 14, 2005
    Before WIDENER, MICHAEL, and KING, Circuit Judges.
    Affirmed by unpublished per curiam opinion.
    Mary Lou Newberger, Federal Public Defender, David R. Bungard,
    Assistant Federal Public Defender, Charleston, West Virginia, for
    Appellant. Kasey Warner, United States Attorney, John L. File,
    Assistant United States Attorney, Charleston, West Virginia, for
    Appellee.
    Unpublished opinions are not binding precedent in this circuit.
    See Local Rule 36(c).
    PER CURIAM:
    Bobby Gillian pled guilty to one count of possession with
    intent to distribute a quantity of cocaine, in violation of 
    21 U.S.C. § 841
    (a)(1) (2000) and one count of being a felon in
    possession of a firearm, in violation of 
    18 U.S.C. §§ 922
    (g)(1) and
    924(a)(2) (2000).     He was sentenced to 188 months in prison for the
    drug charge and 120 months in prison for the firearm charge, to be
    served concurrently. We affirmed his conviction and sentence. See
    United States v. Gillian, No. 03-4964, 99 Fed. App. 477 (4th Cir.
    June 2, 2004) (unpublished).        The Supreme Court granted Gillian’s
    petition for writ of certiorari, vacated this court’s judgment, and
    remanded for further proceedings in light of United States v.
    Booker, 
    125 S. Ct. 738
     (2005).
    Gillian’s sentence was imposed prior to the decisions in
    Booker and Blakely v. Washington, 
    542 U.S. 296
     (2004). Gillian did
    not raise objections to his sentence based on the mandatory nature
    of the sentencing guidelines or the district court’s application of
    sentencing enhancements based on facts not admitted by Gillian or
    found by a jury beyond a reasonable doubt.            Therefore, we review
    his sentence for plain error.         See United States v. Hughes, 
    401 F.3d 540
    , 547 (4th Cir. 2005).
    Consequently, Gillian must show:         (1) an error occurred;
    (2) the error was plain; (3) the error affected his substantial
    rights;   and   (4)   the   error   calls   into   question   the   fairness,
    - 2 -
    integrity, or public reputation of judicial proceedings.           See
    United States v. Olano, 
    507 U.S. 725
    , 732 (1993).       If the three
    elements of the plain error standard are met, the court may
    exercise its discretion to notice error only if the error seriously
    affects “the fairness, integrity, or public reputation of judicial
    proceedings.”    
    Id. at 736
     (citation omitted).
    We conclude that the district court erred because the
    drug quantity attributed to Gillian at sentencing was based on
    certain facts found by the court rather than admitted by Gillian.*
    Hughes, 
    401 F.3d at 546-47
    .      That error was plain because Booker
    abrogated the previous law of this circuit.       
    Id. at 547-48
    .    To
    affect Gillian’s substantial rights, however, the sentence imposed
    must have been longer than what could have been imposed based on
    the guilty plea.   
    Id. at 548
    .
    Gillian’s guilty plea, without any specification as to
    the drug quantity, subjected Gillian to an offense level of thirty-
    two pursuant to his status as a career offender.           See USSG
    § 4B1.1(b)(C).   Based on a total offense level of thirty-two and a
    criminal history category of VI, Gillian’s unenhanced sentencing
    guidelines range was 210 to 262 months’ imprisonment.      See USSG,
    *
    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 Gillian’s sentencing.
    See generally Johnson v. United States, 
    520 U.S. 461
    , 468 (1997)
    (stating that an error is “plain” if “the law at the time of trial
    was settled and clearly contrary to the law at the time of
    appeal”).
    - 3 -
    Sentencing Table; see also United States v. Evans, 
    416 F.3d 298
    ,
    300 n.4 (4th Cir. 2005) (requiring that in determining the correct
    guideline range, the offense level to be used is the base level
    determined by admitted conduct or facts found by the jury “before
    adjusting that range for acceptance of responsibility”).                Because
    Gillian’s 188-month sentence does not exceed the maximum of this
    range, there was no Sixth Amendment violation. See Evans, 
    416 F.3d at 300-01
        (holding   that    if   sentence   does   not   exceed   maximum
    authorized by facts admitted by defendant or found by jury, there
    is no Sixth Amendment violation).
    Accordingly,   we   affirm   Gillian’s     sentence   after   our
    reconsideration in light of Booker. 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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Document Info

Docket Number: 03-4964

Citation Numbers: 158 F. App'x 434

Judges: King, Michael, Per Curiam, Widener

Filed Date: 12/14/2005

Precedential Status: Non-Precedential

Modified Date: 8/7/2023