United States v. Davis

Opinion

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 04-4740

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

GILBERT LEANDER DAVIS, JR.,

Defendant - Appellant.

No. 04-4970

DANIEL PAUL DEBNER,

Appeals from the United States District Court for the District of South Carolina, at Florence. Terry L. Wooten, District Judge. (CR-04-167)

Submitted: May 31, 2006 Decided: June 30, 2006

Before MICHAEL, MOTZ, and SHEDD, Circuit Judges. Affirmed by unpublished per curiam opinion.

Nathaniel Roberson, Columbia, South Carolina; W. James Hoffmeyer, LAW OFFICE OF W. JAMES HOFFMEYER, Florence, South Carolina, for Appellants. Jonathan S. Gasser, Acting United States Attorney, Alfred W. Bethea, Jr., Assistant United States Attorney, Florence, South Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

- 2 - PER CURIAM:

Gilbert Leander Davis, Jr., and Daniel Paul Debner appeal

from their sentences imposed pursuant to their guilty pleas to

conspiracy to possess with intent to distribute a quantity of

cocaine. Appellants assert that the district court erred under

United States v. Booker, 543 U.S. 220 (2005), by sentencing them

for crack cocaine, because they did not admit to a conspiracy

involving crack cocaine. In addition, Davis asserts that his

firearm enhancement violated Booker.

We agree that there was Booker error. Appellants were

sentenced under the mandatory guideline scheme and received more

than the maximum sentence permitted by the facts admitted. See

United States v. Hughes, 401 F.3d 540, 547 (4th Cir. 2005).

However, because the district court imposed identical, alternative

sentences in the event that the guidelines were found to be

non-binding, any error was harmless. See United States v. Shatley,

448 F.3d 264, 266-67 (4th Cir. 2006). The district court followed

our recommendation in United States v. Hammoud, 381 F.3d 316 (4th

Cir.), vacated, 543 U.S. 1097 (2005); its alternative sentences

were within the range recommended by the sentencing guidelines, and

we take the district court at its word when it stated that it would

impose the same sentences under the advisory guideline system.

Shatley, 448 F.3d at 267-68.

- 3 - Accordingly, we affirm Appellants’ sentences. 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

- 4 -