United States v. Hammoud

405 F.3d 1034, 2005 U.S. App. LEXIS 7184, 2005 WL 975119

Opinion

ORDER

This court, sitting en banc, previously affirmed Mohamad Youssef Hammoud’s convictions and sentence. See United States v. Hammoud, 381 F.3d 316 (4th Cir.2004) (en banc). Subsequently, the Supreme Court granted certiorari, vacated our decision, and remanded for reconsideration in light of United States v. Booker, — U.S. -, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). See Hammoud v. United States, — U.S. -, 125 S.Ct. 1051, 160 L.Ed.2d 997 (2005).

Because the order of the Supreme Court does not affect our resolution of Ham-moud’s challenges to his convictions and the calculation of his guideline range, we reinstate those portions of our prior opinion. See Hammoud, 381 F.3d at 325-44, 354-57. However, the sentence imposed on Hammoud exceeded the maximum sentence authorized by the jury verdict alone, see United States v. Hughes, 401 F.3d 540, 542 (4th Cir.2005), and the Government cannot prove that this error, which Ham-moud preserved in the district court, did not affect Hammoud’s substantial rights, see Fed.R.Crim.P. 52(a). We therefore vacate Hammoud’s sentence and remand for resentencing under the advisory guidelines regime set forth in Booker, 125 S.Ct. at 756-57, 764-65.

Entered at the direction of Chief Judge Wilkins with the concurrences of Judges Widener, Wilkinson, Niemeyer, Williams, Michael, Motz, Trader, King, Gregory, Shedd, and Duncan.