158 F. App'x 449

UNITED STATES of America, Plaintiff—Appellee, v. Henry HILL, Sr., Defendant—Appellant.

No. 03-4832.

United States Court of Appeals, Fourth Circuit.

Submitted Oct. 7, 2005.

Decided Dec. 20, 2005.

Craig W. Sampson, Sampson Law Firm, P.L.C., Richmond, Virginia, for Appellant. Paul J. McNulty, United States Attorney, *450Michael J. Elston, Sara E. Flannery, Assistant United States Attorneys, Alexandria, Virginia, for Appellee.

Before MICHAEL, TRAXLER, and DUNCAN, Circuit Judges.

Affirmed in part, vacated in part, and remanded by unpublished PER CURIAM opinion.

Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c).

PER CURIAM:

This case is before us on remand from the United States Supreme Court for further consideration in light of United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). In United States v. Hill, No. 03-4832 (4th Cir. July 29, 2004) (unpublished), vacated, — U.S. —, 125 S.Ct. 1085 (2005), 160 L.Ed.2d 1057, we affirmed Hill’s conviction and 188-month sentence imposed by the district court after a jury convicted Hill of conspiracy to distribute and possess with intent to distribute less than five grams of crack cocaine, in violation of 21 U.S.C. § 846 (2000). After reviewing Hill’s appeal in light of Booker, we affirm Hill’s conviction for the reasons stated in our prior opinion, vacate Hill’s sentence, and remand for re-sentencing.

Hill contends that his sentence violates the Sixth Amendment because the district court at sentencing held him accountable for thirty-three grams of crack and enhanced his sentence for obstruction of justice. Because Hill did not raise a Sixth Amendment issue in the district court, we review for plain error.1 See United States v. Hughes, 401 F.3d 540, 547 (4th Cir.2005). To demonstrate plain error, Hill must establish that error occurred, that it was plain, and that it affected his substantial rights. Id. at 547-48. If a defendant satisfies these requirements, our “discretion is appropriately exercised only when failure to do so would result in a miscarriage of justice, such as when the defendant is actually innocent or the error seriously affects the fairness, integrity or public reputation of judicial proceedings.” Id. at 555 (internal quotation marks and citation omitted).

In Booker, the Supreme Court held that the mandatory manner in which the 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. 125 S.Ct. at 746, 750 (Stevens, J., opinion of the Court). The Court remedied the constitutional violation by making the Guidelines advisory through the removal of two statutory provisions *451that had rendered them mandatory. Id. at 746 (Stevens, J., opinion of the Court); id. at 756-67 (Breyer, J., opinion of the Court).

Here, the district court sentenced Hill under the mandatory federal Sentencing Guidelines by determining drug quantity, applying an obstruction of justice enhancement, and departing from criminal history category V to VI. These findings yielded a Sentencing Guideline range of 168 to 210 months of imprisonment, and the court sentenced Hill to a 188-month term of imprisonment. Using only the amount of drugs found by the jury (less than five grams of crack cocaine) without the enhancement for obstruction of justice,2 Hill’s offense level would have been twenty-four. See U.S. Sentencing Guidelines Manual § 2D1.1(c)(8) (2002). The resulting Guideline range would be 100 to 125 months of imprisonment. USSG Ch. 5, Pt. A (Sentencing Table). In light of Booker and Hughes, we find that the district court’s plain error in sentencing Hill based on facts found by the court affects his substantial rights and warrants correction.3

Accordingly, we vacate Hill’s sentence and remand for resentencing.4 We also affirm Hill’s conviction. 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 IN PART, VACATED IN PART, AND REMANDED.

United States v. Hill
158 F. App'x 449

Case Details

Name
United States v. Hill
Decision Date
Dec 20, 2005
Citations

158 F. App'x 449

Jurisdiction
United States

References

Referencing

Nothing yet... Still searching!

Referenced By

Nothing yet... Still searching!