United States v. Washington

131 F. App'x 941

Opinion

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 04-4373

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

DWONENRICO M. WASHINGTON,

Defendant - Appellant.

Appeal from the United States District Court for the District of South Carolina, at Charleston. David C. Norton, District Judge. (CR-03-797)

Submitted: April 29, 2005 Decided: May 20, 2005

Before WILKINSON and WILLIAMS, Circuit Judges, and HAMILTON, Senior Circuit Judge.

Vacated and remanded by unpublished per curiam opinion.

Parks Nolan Small, Federal Public Defender, Columbia, South Carolina, Ann Briks Walsh, Assistant Federal Public Defender, Charleston, South Carolina, for Appellant. Alston Calhoun Badger, Jr., Assistant United States Attorney, Charleston, South Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Dwonenrico M. Washington pled guilty, without a plea

agreement, to one count of possession of a firearm by a convicted

felon in violation of 18 U.S.C. § 922(g)(1) and § 924(a)(2)

(2000).* Washington was sentenced on May 5, 2004, to 110 months in

prison, followed by three years of supervised release. After

Washington filed his appeal, the Supreme Court decided United

States v. Booker, 125 S. Ct. 738 (2005). Washington has filed a

motion to remand for resentencing in light of Booker. The

Government does not oppose the motion.

We grant Washington’s motion to remand to allow the

district court to reconsider Washington’s sentence in light of

Booker. Although the Sentencing 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. On remand, the district court

should first determine the appropriate sentencing range under the

Guidelines, making all factual findings appropriate for that

determination. See United States v. Hughes, 401 F.3d 540, 546 (4th

Cir. 2005) (applying Booker on plain error review). The court

should consider this sentencing range along with the other factors

described in 18 U.S.C. § 3553(a) (2000), and then impose a

* Washington does not attack the voluntariness of his guilty plea.

- 2 - sentence. Id. If that sentence falls outside the Guidelines

range, the court should explain its reasons for the departure as

required by 18 U.S.C. § 3553(c)(2) (2000). Id. The sentence must

be “within the statutorily prescribed range and . . . reasonable.”

Id. at 546-47. 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

- 3 -