Id. §§ 841(a)(1) and (b)(1)(D).
For the reasons stated below, we vacate Wilder’s sentence and
remand for resentencing.
I
On November 5, 2003, a confidential informant notified the
Nash County, North Carolina Sheriff’s Office of an impending drug
transaction involving Luther Breland and Wilder. As a result of
this information, the sheriff’s office set up surveillance on
Breland. On November 6, 2003, Breland, while under surveillance by
the sheriff’s office, traveled to Wilder’s residence in Spring
Hope, North Carolina and purchased one ounce of cocaine from
Wilder. Following the transaction, Breland was arrested. A search
warrant was obtained and executed at Wilder’s residence. Pursuant
to the search of Wilder’s residence, law enforcement agents seized,
inter alia, 572 grams of cocaine, thirty pounds of marijuana, and
several unloaded firearms in a gun cabinet.
A federal grand jury indicted Wilder on two counts. Count One
charged Wilder with possession with intent to distribute 500 grams
- 2 -
or more of cocaine.
Id. §§ 841(a)(1) and (b)(1)(B). Count Two
charged him with possession with intent to distribute marijuana.
Id. §§ 841(a)(1) and (b)(1)(D). Pursuant to a plea agreement,
Wilder agreed to plead guilty to both counts.
The Presentence Investigation Report (PSR) recommended a base
offense level of twenty-six, United States Sentencing Commission,
Guidelines Manual, (USSG) § 2D1.1(c)(7). Two levels were added
because a dangerous weapon was possessed, USSG § 2D1.1(b)(1). The
PSR recommended a three level reduction for acceptance of
responsibility, USSG § 3E1.1(b), resulting in an offense level of
twenty-five. Coupled with a criminal history category of one,
Wilder’s Guidelines range for Count One was sixty to seventy-one
months. His Guidelines range for Count Two was fifty-seven to
sixty months. The ranges differed between Counts One and Two
because sixty months was the minimum sentence authorized by statute
for Count One (under 21 U.S.C. § 841(b)(1)(B), five-year minimum
sentence if offense involves more than 500 grams of cocaine) and
sixty months was the maximum sentence authorized by statute for
Count Two (under 21 U.S.C. § 841(b)(1)(D), five-year maximum
sentence if offense involves less than fifty kilograms of
marijuana).
Wilder made several objections to the PSR. First, he objected
to the two-level enhancement for firearm possession, arguing both
that there was no factual support for the enhancement and that the
- 3 -
enhancement was unconstitutional pursuant to Blakely v. Washington,
124 S. Ct. 2531 (2004). He also argued that he qualified for the
application of the “safety valve” provision contained in USSG
§ 5C1.2.1
On July 6, 2004, Wilder was sentenced. At the beginning of
the sentencing hearing, the district court announced it would not
consider the Sentencing Guidelines as binding, but instead would
impose a sentence “as authorized by statute.”2 The court explained
it nevertheless would take into account the information contained
in the PSR and the factors identified in the Sentencing Guidelines.
During the sentencing hearing, Wilder argued that the firearm
enhancement should not apply and that he qualified for the
application of the safety valve provision. The district court
declined to make a factual finding concerning whether Wilder
1
“The safety valve permits shorter sentences for a first-time
offender who would otherwise face a mandatory minimum, provided
that he meets five statutory requirements.” United States v.
Fletcher, 74 F.3d 49, 56 (4th Cir. 1996). For USSG § 5C1.2 to
apply,(1) the defendant cannot have more than one criminal history
point; (2) the defendant cannot have used violence or threats of
violence or possess a firearm or other dangerous weapon in
connection with the offense; (3) the offense cannot have resulted
in death or serious bodily injury; (4) the defendant cannot have
been an organizer, leader, manager, or supervisor in regard to the
offense; and (5) no “later than the time of the sentencing hearing,
the defendant [must have] truthfully provided to the Government all
information and evidence the defendant has concerning the offense.”
USSG § 5C1.2.
2
The sentencing hearing took place after the Supreme Court had
issued its decision in Blakely, but before the Court had issued its
decision in United States v. Booker, 125 S. Ct. 738 (2005).
- 4 -
possessed the firearms in connection with the drug offenses. The
court also declined to address the question of whether Wilder was
entitled to the application of the safety valve provision.
Instead, the court stated it was “not relying on the guidelines in
any way, shape or form.” The district court sentenced Wilder to
concurrent sixty-month terms of imprisonment. In the judgment, the
court stated that the Guidelines were unconstitutional and the
court was sentencing Wilder under its “statutory authority.” The
court added that, in imposing the sentence, it considered the PSR
and Wilder’s objections to the PSR.
II
On appeal, Wilder contends that the district court was
required to determine whether he was eligible for the benefit of
the safety valve provision in determining his sentence. We agree.
We begin by noting that, in sentencing Wilder, the district
court did not have the benefit of either Booker or our decision in
United States v. Hughes, 401 F.3d 540 (4th Cir. 2005). In Booker,
the Supreme Court held that its decision in Blakely applied to the
Sentencing Guidelines and that the mandatory Guidelines scheme
providing for sentence enhancements based on facts found by the
sentencing court violated the Sixth Amendment.
Booker, 125 S. Ct.
at 755-56 (Stevens, J., opinion of the Court). The Court remedied
the constitutional violation by severing and excising the statutory
- 5 -
provisions that mandate sentencing and appellate review under the
Guidelines, thus making the Guidelines advisory. Id. at 756-57
(Breyer, J., opinion of the Court). Subsequently, in Hughes, we
held that a sentence that is enhanced based on facts found by the
court, not by a jury (or, in a guilty plea case, facts not admitted
by the defendant), violates the Sixth Amendment and 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 Guidelines scheme.
Hughes, 401 F.3d at 545-56.
In the wake of Booker, the Guidelines no longer are mandatory.
However, Booker makes clear that a sentencing court must still
“consult [the] Guidelines and take them into account when
sentencing.” 125 S. Ct. at 767 (Breyer, J., opinion of the Court).
Thus, in imposing a sentence, the district court should first
determine the appropriate sentencing range under the Guidelines,
making all factual findings appropriate for that determination.
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)
and then impose a sentence.
Hughes, 401 F.3d at 546. If that
sentence falls outside the Guidelines range, the court should
explain its reason for the departure as required by 18 U.S.C.
§ 3553(c)(2).
Hughes, 401 F.3d at 546. The sentence must be
- 6 -
“within the statutorily prescribed range and . . . reasonable.”
Id. at 547.
In this case, the district court declined to make findings of
fact necessary to the determination of a range pursuant to the
Sentencing Guidelines. Specifically, the court declined to rule
either on Wilder’s objection to the firearm enhancement or on his
claim of entitlement to the benefit of the safety valve provision.
It necessarily follows that the court neither calculated a range
pursuant to the Guidelines nor considered that range. Thus, the
court’s sentencing approach runs afoul of Hughes because that case
requires the sentencing court to calculate the defendant’s
sentencing range under the Sentencing Guidelines.
The only remaining question is whether the error here is
harmless. Under Rule 52(a) of the Federal Rules of Criminal
Procedure, an appellate court may disregard any error that does not
affect substantial rights. The government bears the burden in
harmless error review of showing beyond a reasonable doubt that the
error did not affect the defendant’s substantial rights. United
States v. Stokes, 261 F.3d 496, 499 (4th Cir. 2001). Substantial
rights are affected when the error alters the outcome of the
proceeding.
Id. An error in sentencing may be disregarded if the
reviewing court is certain that any such error “did not affect the
district court’s selection of the sentence imposed.” Williams v.
United States,
503 U.S. 193, 203 (1992).
- 7 -
In this case, we are of the opinion that the error is not
harmless. The district court never addressed the applicability of
the safety valve provision and we can only speculate as to the
sentence the court would have imposed had it concluded that the
safety valve provision was applicable. Because the application of
the safety valve provision under both a Guidelines (USSG § 5C1.2)
and statutory approach (18 U.S.C. § 3553(f)) would have permitted
a sentence well below the sixty month concurrent sentence the
district court ultimately imposed, we cannot say that the court’s
failure to consider the safety valve provision did not affect its
ultimate determination of the proper sentence.
III
For the reasons stated herein, we vacate Wilder’s sentence and
remand the case for resentencing. On remand, the court should
follow the sentencing approach outlined in our decision in Hughes.3
VACATED AND REMANDED
3
We express no opinion on whether Wilder is, in fact, entitled
to the benefit of the safety valve provision.
- 8 -
