United States v. James

Opinion

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 05-4901

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

BAXTER SMITH JAMES,

Defendant - Appellant.

Appeal from the United States District Court for the Western District of North Carolina, at Statesville. Richard L. Voorhees, District Judge. (5:03-cr-00006-3)

Submitted: April 20, 2007 Decided: August 10, 2007

Before WILLIAMS, Chief Judge, and GREGORY and SHEDD, Circuit Judges.

Vacated and remanded by unpublished per curiam opinion.

Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon, Assistant Federal Public Defender, Raleigh, North Carolina, for Appellant. Gretchen C.F. Shappert, United States Attorney, Keith Michael Cave, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina, Amy Elizabeth Ray, OFFICE OF THE UNITED STATES ATTORNEY, Asheville, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit. PER CURIAM:

Baxter James pled guilty to conspiracy to possess with

intent to distribute methamphetamine, in violation of 21 U.S.C.

§§ 841(a)(1), 846 (2000). The district court sentenced James to

seventy months’ imprisonment and recommended an alternative

sentence of eighteen months’ imprisonment in light of Blakely v.

Washington, 542 U.S. 296 (2004), and United States v. Hammoud, 381

F.3d 316, 353-54 (4th Cir. 2004) (en banc). James did not appeal.

Instead, James filed a 28 U.S.C. § 2255 (2000) motion in

district court alleging ineffective assistance of counsel due to

his attorney’s failure to appeal his sentence under United

States v. Booker, 543 U.S. 220 (2005), and seeking to effectuate

the alternative sentence of eighteen months’ imprisonment as his

actual sentence. The court entered an amended judgment imposing

the same sentences and conditions as the original judgment form,

and James appealed.

In his opening brief, James challenged his sentence,

contending the district court treated the sentencing guidelines as

mandatory rather than advisory. James claimed this error affected

his substantial rights. See United States v. White, 405 F.3d 208,

223-24 (4th Cir.), cert. denied, 126 S. Ct. 668 (2005). The

Government filed a motion to dismiss the appeal, asserting James

waived his right to appeal the sentence by signing a waiver of

appellate rights contained in the plea agreement. We directed the

- 2 - parties to file supplemental briefs addressing whether the seventy-

month guidelines sentence, re-imposed by the district court after

Booker issued, remains operable. The parties submitted

supplemental briefs as directed.

In its supplemental brief, the Government concedes the

seventy-month sentence is not operative and agrees with James that

his sentence should be vacated and the matter remanded for

resentencing. Thus, the Government has abandoned its earlier

position that appellate review is precluded by the waiver of

appellate rights. Accordingly, we deny the Government’s motion to

dismiss. See United States v. Blick, 408 F.3d 162, 168 (4th Cir.

2005).

Furthermore, although this Court is “not at liberty to vacate

and remand for resentencing on the Government’s concession of error

alone,” United States v. Rodriguez, 433 F.3d 411, 414-15 n.6 (4th

Cir. 2006) (citations omitted), we find that the district court’s

alternative sentence provides a nonspeculative basis for concluding

that the court’s treatment of the sentencing guidelines as

mandatory affected the selection of the sentence imposed. See

White, 405 F.3d at 223. Accordingly, we vacate the sentence re-

imposed by the district court and remand for re-sentencing

consistent with Booker.

- 3 - 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.

VACATED AND REMANDED

- 4 -