PER CURIAM:
These cases are 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 June 2001, Jeffrey Lee Gore (“Jeffrey Gore”) and his brother, Vander Keith Gore (“Keith Gore”), were indicted for multiple violations of 21 U.S.C. §§ 841(a)(1), 846 (2000). The Gore brothers entered into plea agreements and, consistent with these agreements, pled guilty to the first count of the superseding indictment. In January 2003, Jeffrey Gore was sentenced to 360 months’ imprisonment, and Keith Gore was sentenced to 240 months’ imprisonment.
In
United States v. Gore,
93 Fed.Appx 569 (4th Cir.2004) (unpublished),
vacated,
543 U.S. 1105, 125 S.Ct. 1035, 160 L.Ed.2d 1022 (2005), we affirmed their sentences. After reviewing Jeffrey Gore’s appeal in light of
Booker,
we vacate his sentence and remand for resentencing. After reviewing Keith Gore’s appeal in light of
Booker,
we affirm his sentence. Their convictions are affirmed for the reasons stated in our 2004 opinion.
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. 543 U.S. at 244, 125 S.Ct. 738.
There are two types of error under
Booker:
a violation of the Sixth Amendment, by imposing a sentence greater than the maximum permitted based on facts found by a jury or admitted by the defendant, and a failure to treat the Sentencing Guidelines as advisory.
United States v. Hughes,
401 F.3d 540, 552 (4th Cir.2005).
Although we do not find that the district court committed the first type of error in Jeffrey Gore’s case,
we conclude
that the district court erred in applying the Sentencing Guidelines as mandatory.
Because Jeffrey Gore did not preserve this claim in the district court, we review for plain error.
See Hughes,
401 F.3d at 547.
In
United States v. White,
405 F.3d 208 (4th Cir.),
cert. denied,
- U.S.-, 126 S.Ct. 668, 163 L.Ed.2d 539 (2005), we held that treating the guidelines as mandatory was error in light of
Booker,
and that the error was plain.
White,
405 F.3d at 216-17. We declined to presume prejudice,
id.
at 217-22, holding that the “prejudice inquiry, therefore, is ... whether after pondering all that happened without stripping the erroneous action from the whole, ... the judgment was ... substantially swayed by the error.”
Id.
at 223 (internal quotation marks and citations omitted).
To make this showing, a defendant must “demonstrate, based on the record, that the treatment of the guidelines as mandatory caused the district court to impose a longer sentence than it otherwise would have imposed.”
Id.
at 224. Because “the record as a whole provide[d] no nonspeculative basis for concluding that the treatment of the guidelines as mandatory ‘affect[ed] the district court’s selection of the sentence imposed,’ ”
id.
at 223 (quoting
Williams v. United States,
503 U.S. 193, 203, 112 S.Ct. 1112, 117 L.Ed.2d 341 (1992)), we concluded in
White
that the error did not affect the defendant’s substantial rights, and thus, we affirmed the sentence.
Id.
at 225;
see also United States v. Collins,
412 F.3d at 524-25 (finding that defendant failed to demonstrate prejudice from being sentenced under a mandatory application of the sentencing guidelines).
Here, there is a nonspeculative basis on which to conclude the district court’s application of the Sentencing Guidelines as mandatory affected its selection of the sentence imposed upon Jeffrey Gore. During the sentencing hearing, the district court noted that [its] “discretion by the sentencing guidelines is severely limited, and [it has] to live within the law.” It sentenced Jeffrey Gore in accordance with the Sentencing Guidelines, remarking of the 360-month sentence, “[I]f you say it fast, it might not sound like much, but it is a lifetime. It is a lot of time. And I think that’s more than enough in this particular case.”
The 360-month sentence represented the bottom of the applicable Sentencing Guidelines range. Because the district court remarked that the sentence imposed was “more than enough” time in Jeffrey Gore’s case, there exists a nonspeculative basis for concluding that the treatment of the guidelines as mandatory affected the district court’s selection of the sentence imposed.
White,
405 F.3d at 223;
see also
18 U.S.C. § 3553(a) (2000) (providing that the court “shall impose a sentence sufficient, but not greater than necessary,” to meet the statutory objectives of punishment, deterrence, avoidance of sentencing
disparities, and the like). Accordingly, we vacate Jeffrey Gore’s sentence and remand his case to the district court for resentencing in light of
Booker.
Keith Gore was sentenced to 240 months’ imprisonment for his offense.
See
21 U.S.C. § 841(b)(1)(A) (2000). This term was the statutory mandatory minimum sentence, as the Government had alleged in the superseding indictment and provided notice in a 21 U.S.C. § 851 (2000) information that he had one prior conviction for a felony drug offense. This enhanced penalty was permissible.
See AlmendarezTorres v. United States,
528 U.S. 224, 233-36, 243-44, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998) (marking an exception, in the case of a fact of a prior conviction, to the general rule that a district court may not impose a sentence greater than the maximum authorized by the facts found by the jury or admitted by the defendant in a guilty plea);
Harris v. United States,
536 U.S. 545, 567-68, 122 S.Ct. 2406, 153 L.Ed.2d 524 (2002) (holding that
Apprendi v. New Jersey,
530 U.S. 466, 120 S.Ct.
Free access — add to your briefcase to read the full text and ask questions with AI
PER CURIAM:
These cases are 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 June 2001, Jeffrey Lee Gore (“Jeffrey Gore”) and his brother, Vander Keith Gore (“Keith Gore”), were indicted for multiple violations of 21 U.S.C. §§ 841(a)(1), 846 (2000). The Gore brothers entered into plea agreements and, consistent with these agreements, pled guilty to the first count of the superseding indictment. In January 2003, Jeffrey Gore was sentenced to 360 months’ imprisonment, and Keith Gore was sentenced to 240 months’ imprisonment.
In
United States v. Gore,
93 Fed.Appx 569 (4th Cir.2004) (unpublished),
vacated,
543 U.S. 1105, 125 S.Ct. 1035, 160 L.Ed.2d 1022 (2005), we affirmed their sentences. After reviewing Jeffrey Gore’s appeal in light of
Booker,
we vacate his sentence and remand for resentencing. After reviewing Keith Gore’s appeal in light of
Booker,
we affirm his sentence. Their convictions are affirmed for the reasons stated in our 2004 opinion.
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. 543 U.S. at 244, 125 S.Ct. 738.
There are two types of error under
Booker:
a violation of the Sixth Amendment, by imposing a sentence greater than the maximum permitted based on facts found by a jury or admitted by the defendant, and a failure to treat the Sentencing Guidelines as advisory.
United States v. Hughes,
401 F.3d 540, 552 (4th Cir.2005).
Although we do not find that the district court committed the first type of error in Jeffrey Gore’s case,
we conclude
that the district court erred in applying the Sentencing Guidelines as mandatory.
Because Jeffrey Gore did not preserve this claim in the district court, we review for plain error.
See Hughes,
401 F.3d at 547.
In
United States v. White,
405 F.3d 208 (4th Cir.),
cert. denied,
- U.S.-, 126 S.Ct. 668, 163 L.Ed.2d 539 (2005), we held that treating the guidelines as mandatory was error in light of
Booker,
and that the error was plain.
White,
405 F.3d at 216-17. We declined to presume prejudice,
id.
at 217-22, holding that the “prejudice inquiry, therefore, is ... whether after pondering all that happened without stripping the erroneous action from the whole, ... the judgment was ... substantially swayed by the error.”
Id.
at 223 (internal quotation marks and citations omitted).
To make this showing, a defendant must “demonstrate, based on the record, that the treatment of the guidelines as mandatory caused the district court to impose a longer sentence than it otherwise would have imposed.”
Id.
at 224. Because “the record as a whole provide[d] no nonspeculative basis for concluding that the treatment of the guidelines as mandatory ‘affect[ed] the district court’s selection of the sentence imposed,’ ”
id.
at 223 (quoting
Williams v. United States,
503 U.S. 193, 203, 112 S.Ct. 1112, 117 L.Ed.2d 341 (1992)), we concluded in
White
that the error did not affect the defendant’s substantial rights, and thus, we affirmed the sentence.
Id.
at 225;
see also United States v. Collins,
412 F.3d at 524-25 (finding that defendant failed to demonstrate prejudice from being sentenced under a mandatory application of the sentencing guidelines).
Here, there is a nonspeculative basis on which to conclude the district court’s application of the Sentencing Guidelines as mandatory affected its selection of the sentence imposed upon Jeffrey Gore. During the sentencing hearing, the district court noted that [its] “discretion by the sentencing guidelines is severely limited, and [it has] to live within the law.” It sentenced Jeffrey Gore in accordance with the Sentencing Guidelines, remarking of the 360-month sentence, “[I]f you say it fast, it might not sound like much, but it is a lifetime. It is a lot of time. And I think that’s more than enough in this particular case.”
The 360-month sentence represented the bottom of the applicable Sentencing Guidelines range. Because the district court remarked that the sentence imposed was “more than enough” time in Jeffrey Gore’s case, there exists a nonspeculative basis for concluding that the treatment of the guidelines as mandatory affected the district court’s selection of the sentence imposed.
White,
405 F.3d at 223;
see also
18 U.S.C. § 3553(a) (2000) (providing that the court “shall impose a sentence sufficient, but not greater than necessary,” to meet the statutory objectives of punishment, deterrence, avoidance of sentencing
disparities, and the like). Accordingly, we vacate Jeffrey Gore’s sentence and remand his case to the district court for resentencing in light of
Booker.
Keith Gore was sentenced to 240 months’ imprisonment for his offense.
See
21 U.S.C. § 841(b)(1)(A) (2000). This term was the statutory mandatory minimum sentence, as the Government had alleged in the superseding indictment and provided notice in a 21 U.S.C. § 851 (2000) information that he had one prior conviction for a felony drug offense. This enhanced penalty was permissible.
See AlmendarezTorres v. United States,
528 U.S. 224, 233-36, 243-44, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998) (marking an exception, in the case of a fact of a prior conviction, to the general rule that a district court may not impose a sentence greater than the maximum authorized by the facts found by the jury or admitted by the defendant in a guilty plea);
Harris v. United States,
536 U.S. 545, 567-68, 122 S.Ct. 2406, 153 L.Ed.2d 524 (2002) (holding that
Apprendi v. New Jersey,
530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), applies to facts that increase the sentence beyond the statutory maximum, but not to facts that merely increase the mandatory minimum sentence);
United States v. Cheek,
415 F.3d 349, 351-54 (4th Cir.2005) (reaffirming validity of
Almendarez-Torres
after
Booker).
The district court correctly set the bottom of the Sentencing Guidelines range at 240 months’ imprisonment. Although Keith Gore correctly notes that the district court erred in sentencing him under the then-mandatory Sentencing Guidelines,
Booker
is of no assistance to him. As we held in
United States v. Robinson,
404 F.3d 850, 862 (4th Cir.2005),
“Booker
did nothing to alter the rule that judges cannot depart below a statutorily provided minimum sentence.” Accordingly, we affirm Keith Gore’s 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.
No. 03-4055
AFFIRMED.
No. 03-4102
AFFIRMED IN PART; VACATED AND REMANDED IN PART