UNPUBLISHED
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 04-4235
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
STEPHEN C. SIGMON,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern District of Virginia, at Richmond. Henry E. Hudson, District Judge. (CR-03-225)
Submitted: May 25, 2005 Decided: July 13, 2005
Before NIEMEYER, LUTTIG, and MOTZ, Circuit Judges.
Affirmed in part, vacated in part, and remanded by unpublished per curiam opinion.
Frank W. Dunham, Jr., Federal Public Defender, Robert J. Wagner, Assistant Federal Public Defender, Meghan S. Skelton, Frances H. Pratt, Research and Writing Attorneys, Richmond, Virginia, for Appellant. Paul J. McNulty, United States Attorney, Michael J. Elston, Michael C. Wallace, Assistant United States Attorneys, Alexandria, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c). PER CURIAM:
Stephen C. Sigmon appeals the seventy-seven month
sentence imposed after he pled guilty, without a written plea
agreement, to possession of a firearm by a person previously
convicted of a misdemeanor crime of domestic violence, in violation
of 18 U.S.C. § 922(g)(9) (2000). Citing Blakely v. Washington, 124
S. Ct. 2531 (2004), and United States v. Booker, 125 S. Ct. 738
(2005), Sigmon asserts that his sentence is unconstitutional. He
also contends that the district court erred in finding that a
preponderance of the evidence supported the application of two
sentencing enhancements and in assessing two criminal history
points for offenses he committed before the age of eighteen. We
affirm Sigmon’s conviction but vacate Sigmon’s sentence and remand
for resentencing.
I.
Sigmon contends that his sentence is unconstitutional in
light of Blakely and Booker. Because he did not raise this issue
in the district court, his claim is reviewed for plain error. Fed.
R. Crim. P. 52(b); United States v. Hughes, 401 F.3d 540, 547 (4th
Cir. 2005). To demonstrate plain error, Sigmon must establish that
error occurred, that it was plain, and that it affected his
substantial rights. Id. at 547-48. If a defendant establishes
these requirements, the court’s “discretion is appropriately
exercised only when failure to do so would result in a miscarriage
- 2 - 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 Federal 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
that 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 Sigmon under the
mandatory Federal Sentencing Guidelines and applied two
enhancements based on facts found by a preponderance of the
evidence. Specifically, the court established a base offense level
of twenty-four by applying the Guideline for abduction in U.S.
Sentencing Guidelines Manual (“USSG”) § 2A4.1(a) (2002), through
the cross-reference in USSG §§ 2K2.1(c)(1), 2X1.1(a), and increased
the base offense level by two levels under USSG § 2A4.1(b) for use
of a dangerous weapon. In light of Booker and Hughes, we find that
- 3 - the district court plainly erred in sentencing Sigmon and that the
error warrants correction.1
Sigmon also asserts that, under Blakely, the district
court erroneously calculated his criminal history score by
assessing three points for a malicious wounding offense and two
points because he was under a criminal justice sentence at the time
of the instant offense by making factual findings beyond the mere
fact of conviction, such as his age at the time of the prior
offenses, the date the prior offenses occurred, and whether the
length of the prior sentences fell within the applicable time
limits for counting prior offenses. We disagree. In Booker, the
Supreme Court reaffirmed its holding in Apprendi v. New Jersey, 530
U.S. 466 (2000), that “[a]ny fact (other than a prior conviction)
which is necessary to support a sentence exceeding the maximum
authorized by the facts established by a plea of guilty or a jury
verdict must be admitted by the defendant or proved to a jury
beyond a reasonable doubt.” Booker, 125 S. Ct. at 756 (Stevens,
J., opinion of the Court). The district court’s finding that these
criminal history points were warranted falls within exception for
prior convictions. Accordingly, there is no error. See Booker,
125 S. Ct. at 750-51 (Stevens, J., opinion of the Court).
1 Just as we noted in Hughes, “[w]e of course offer no criticism of the district judge, who followed the law and procedure in effect at the time” of Sigmon’s sentencing. 401 F.3d at 545 n.4.
- 4 - II.
Sigmon also raises two challenges to his sentence apart
from Booker. He asserts that the district court erred by finding
that a preponderance of the evidence supported the abduction
enhancement.2 We note that, in finding that Sigmon abducted his
wife during the commission of the instant offense, the district
court relied on its interpretation of Virginia law. However, to
determine whether an enhancement for abduction is warranted under
the Federal Sentencing Guidelines, the court should have applied
the definition in the Guidelines. See USSG § 1B1.1, cmt. (n.1(a))
(“‘Abducted’ means that a victim was forced to accompany an
offender to a different location. For example, a bank robber’s
forcing a bank teller from the bank into a getaway car would
constitute an abduction.”); United States v. Saknikent, 30 F.3d
1012, 1014 (8th Cir. 1994) (“[T]he abduction adjustment requires
only that force necessary to overcome the particular victim’s
will.”). On remand, the district court should reconsider
application of the cross-reference to the abduction Guideline in
light of the Guideline definition.
2 Sigmon also challenges the firearm enhancement. We express no opinion on whether the facts warrant such an enhancement. See Hughes, 401 F.3d at 556 n.15 (“[W]e do not hold that in every case involving a Booker issue, this court must first address alleged calculation errors before vacating and remanding for resentencing in light of Booker.”).
- 5 - Sigmon also contends that the district court plainly
erred by assigning one criminal history point each to two juvenile
convictions that were committed more than five years before the
instant offense. The Government concedes that the assessment of
these two criminal history points is plain error. We agree and
Free access — add to your briefcase to read the full text and ask questions with AI
UNPUBLISHED
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 04-4235
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
STEPHEN C. SIGMON,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern District of Virginia, at Richmond. Henry E. Hudson, District Judge. (CR-03-225)
Submitted: May 25, 2005 Decided: July 13, 2005
Before NIEMEYER, LUTTIG, and MOTZ, Circuit Judges.
Affirmed in part, vacated in part, and remanded by unpublished per curiam opinion.
Frank W. Dunham, Jr., Federal Public Defender, Robert J. Wagner, Assistant Federal Public Defender, Meghan S. Skelton, Frances H. Pratt, Research and Writing Attorneys, Richmond, Virginia, for Appellant. Paul J. McNulty, United States Attorney, Michael J. Elston, Michael C. Wallace, Assistant United States Attorneys, Alexandria, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c). PER CURIAM:
Stephen C. Sigmon appeals the seventy-seven month
sentence imposed after he pled guilty, without a written plea
agreement, to possession of a firearm by a person previously
convicted of a misdemeanor crime of domestic violence, in violation
of 18 U.S.C. § 922(g)(9) (2000). Citing Blakely v. Washington, 124
S. Ct. 2531 (2004), and United States v. Booker, 125 S. Ct. 738
(2005), Sigmon asserts that his sentence is unconstitutional. He
also contends that the district court erred in finding that a
preponderance of the evidence supported the application of two
sentencing enhancements and in assessing two criminal history
points for offenses he committed before the age of eighteen. We
affirm Sigmon’s conviction but vacate Sigmon’s sentence and remand
for resentencing.
I.
Sigmon contends that his sentence is unconstitutional in
light of Blakely and Booker. Because he did not raise this issue
in the district court, his claim is reviewed for plain error. Fed.
R. Crim. P. 52(b); United States v. Hughes, 401 F.3d 540, 547 (4th
Cir. 2005). To demonstrate plain error, Sigmon must establish that
error occurred, that it was plain, and that it affected his
substantial rights. Id. at 547-48. If a defendant establishes
these requirements, the court’s “discretion is appropriately
exercised only when failure to do so would result in a miscarriage
- 2 - 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 Federal 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
that 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 Sigmon under the
mandatory Federal Sentencing Guidelines and applied two
enhancements based on facts found by a preponderance of the
evidence. Specifically, the court established a base offense level
of twenty-four by applying the Guideline for abduction in U.S.
Sentencing Guidelines Manual (“USSG”) § 2A4.1(a) (2002), through
the cross-reference in USSG §§ 2K2.1(c)(1), 2X1.1(a), and increased
the base offense level by two levels under USSG § 2A4.1(b) for use
of a dangerous weapon. In light of Booker and Hughes, we find that
- 3 - the district court plainly erred in sentencing Sigmon and that the
error warrants correction.1
Sigmon also asserts that, under Blakely, the district
court erroneously calculated his criminal history score by
assessing three points for a malicious wounding offense and two
points because he was under a criminal justice sentence at the time
of the instant offense by making factual findings beyond the mere
fact of conviction, such as his age at the time of the prior
offenses, the date the prior offenses occurred, and whether the
length of the prior sentences fell within the applicable time
limits for counting prior offenses. We disagree. In Booker, the
Supreme Court reaffirmed its holding in Apprendi v. New Jersey, 530
U.S. 466 (2000), that “[a]ny fact (other than a prior conviction)
which is necessary to support a sentence exceeding the maximum
authorized by the facts established by a plea of guilty or a jury
verdict must be admitted by the defendant or proved to a jury
beyond a reasonable doubt.” Booker, 125 S. Ct. at 756 (Stevens,
J., opinion of the Court). The district court’s finding that these
criminal history points were warranted falls within exception for
prior convictions. Accordingly, there is no error. See Booker,
125 S. Ct. at 750-51 (Stevens, J., opinion of the Court).
1 Just as we noted in Hughes, “[w]e of course offer no criticism of the district judge, who followed the law and procedure in effect at the time” of Sigmon’s sentencing. 401 F.3d at 545 n.4.
- 4 - II.
Sigmon also raises two challenges to his sentence apart
from Booker. He asserts that the district court erred by finding
that a preponderance of the evidence supported the abduction
enhancement.2 We note that, in finding that Sigmon abducted his
wife during the commission of the instant offense, the district
court relied on its interpretation of Virginia law. However, to
determine whether an enhancement for abduction is warranted under
the Federal Sentencing Guidelines, the court should have applied
the definition in the Guidelines. See USSG § 1B1.1, cmt. (n.1(a))
(“‘Abducted’ means that a victim was forced to accompany an
offender to a different location. For example, a bank robber’s
forcing a bank teller from the bank into a getaway car would
constitute an abduction.”); United States v. Saknikent, 30 F.3d
1012, 1014 (8th Cir. 1994) (“[T]he abduction adjustment requires
only that force necessary to overcome the particular victim’s
will.”). On remand, the district court should reconsider
application of the cross-reference to the abduction Guideline in
light of the Guideline definition.
2 Sigmon also challenges the firearm enhancement. We express no opinion on whether the facts warrant such an enhancement. See Hughes, 401 F.3d at 556 n.15 (“[W]e do not hold that in every case involving a Booker issue, this court must first address alleged calculation errors before vacating and remanding for resentencing in light of Booker.”).
- 5 - Sigmon also contends that the district court plainly
erred by assigning one criminal history point each to two juvenile
convictions that were committed more than five years before the
instant offense. The Government concedes that the assessment of
these two criminal history points is plain error. We agree and
further conclude that the plain error affects Sigmon’s substantial
rights because excluding those two points would yield a criminal
history score of nine, or category IV.3 (Sigmon was sentenced in
category V.) Finally, we exercise our discretion to notice the
error. Thus, on remand, the district court should resentence
Sigmon without these two criminal history points.
III.
Accordingly, we affirm Sigmon’s conviction, vacate
Sigmon’s sentence, and remand for resentencing consistent with
Booker and Hughes4 and without the criminal history points assessed
3 Contrary to the Government’s assertion, we find that Sigmon’s conviction of driving under the influence on April 16, 2003, the date of the instant offense, is a “related” offense and, therefore, the probation officer properly declined to award a criminal history point for that offense. See USSG § 4A1.2(a)(2) & cmt. (n.3). 4 Although the Guidelines are no longer mandatory, Booker makes clear that a sentencing court must still “consult [the] Guidelines and take them into account when sentencing.” 125 S. Ct. at 767 (Breyer, J., opinion of the Court). On remand, the district court should first determine the appropriate sentencing range under the Guidelines, making all factual findings appropriate for that determination. Hughes, 401 F.3d at 546. The court should consider this sentencing range along with the other factors described in 18 U.S.C.A. § 3553(a) (West 2000 & Supp. 2005), and then impose a sentence. Hughes, 401 F.3d at 546. If that sentence falls outside the Guidelines range, the court should explain its reasons for the
- 6 - for the offenses Sigmon committed before the age of eighteen. We
dispense with oral argument because the facts and legal proceedings
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
departure as required by 18 U.S.C.A. § 3553(c)(2) (West 2000 & Supp. 2005). Hughes, 401 F.3d at 546. The sentence must be “within the statutorily prescribed range and . . . reasonable.” Id. at 547.
- 7 -