UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 04-4303

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

MICHAEL DANIEL HAMMONDS,

Defendant - Appellant.

Appeal from the United States District Court for the District of

South Carolina, at Rock Hill. Cameron McGowan Currie, District

Judge. (CR-02-535)

Submitted: June 10, 2005 Decided: July 13, 2005

Before LUTTIG, WILLIAMS, and GREGORY, Circuit Judges.

Affirmed in part; vacated and remanded in part by unpublished per

curiam opinion.

William N. Nettles, Columbia, South Carolina, for Appellant. J.

Strom Thurmond, Jr., United States Attorney, Rose Mary Parham,

Assistant United States Attorney, Florence, South Carolina, for

Appellee.

Unpublished opinions are not binding precedent in this circuit.

See Local Rule 36(c).
1

On appeal, Hammonds also appears to assert claims of

ineffective assistance of counsel, which are generally not

cognizable on direct appeal. To allow for adequate development of

a record, Hammonds must bring such claims in a 28 U.S.C. § 2255

(2000) motion, unless the record conclusively establishes

ineffective assistance. United States v. Richardson, 195 F.3d 192,

198 (4th Cir. 1999); United States v. King, 119 F.3d 290, 295 (4th

Cir. 1997). We find that Hammonds has failed to meet the high

burden necessary to raise ineffective assistance of counsel on

direct appeal.

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PER CURIAM:

Michael Daniel Hammonds pled guilty to armed robbery in

violation of 18 U.S.C. §§ 1951(a), 2 (2000) (“Count One”); armed

robbery in violation of 18 U.S.C. § 2113(a), (d) (2000) (“Count

Three”); and, attempted armed robbery in violation of 18 U.S.C.

§ 2113(a) (2000) (“Count Six”). The district court sentenced

Hammonds to the statutory maximum on each count; 240 months’

imprisonment for Counts One and Six and 300 months’ imprisonment

for Count Three. This sentence was based, in part, on the court's

findings concerning characteristics of the offense and Hammonds’

prior criminal history.

Citing Blakely v. Washington, 124 S. Ct. 2531 (2004),

Hammonds asserts for the first time on appeal that his sentence is

unconstitutional.1 Specifically, Hammonds challenges each of the

enhancements applied to his sentence. Hammonds appeals the twolevel increase that was applied because property of a financial

institution was taken or was intended to be taken; the six-level

increase that was applied because the court found that a firearm
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was used in the commission of the offense; the two-level increase

that was applied because individuals were physically restrained to

facilitate the commission of the crime or his escape; and the twolevel increase that was applied because the loss in Count Three

exceeded $50,000. 

In United States v. Booker, 125 S. Ct. 738 (2005), the

Supreme Court held that the federal Sentencing Guidelines, under

which courts were required to impose sentencing enhancements based

on facts found by the court by a preponderance of the evidence,

violated the Sixth Amendment because of their mandatory nature.

Id. 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 756-57 (Breyer, J., opinion of the Court). Although

Hammonds did not raise this Sixth Amendment challenge at

sentencing, this court has held that a mandatory enhancement based

on judicial factfinding supported by a preponderance of the

evidence constitutes plain error warranting correction. United

States v. Hughes, 401 F.3d 540, 547-48 (4th Cir.2005) (citing

United States v. Olano, 507 U.S. 725, 731-32 (1993)).

Based on a careful review of the record, we find that

Hammonds was charged in the second superseding indictment with

and/or admitted to the facts underlying his sentencing enhancements
2We of course offer no criticism of the district judge, who

followed the law and procedure in effect at the time of Hammonds’

sentencing.

3Although 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.

Hughes, 401 F.3d at 546. 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 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). Id. The

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based on (1) property taken from a financial institution; (2) the

amount of money taken from the financial institution; and, (3) the

physical restraint of employees to facilitate the commission of the

crime or his escape. Nevertheless, Hammonds also disputes the sixlevel enhancement that was applied to his sentence for the use of

a “firearm,” stating that a toy weapon and a BB gun were actually

used in the commission of the robberies. At sentencing, the

district court found, by a preponderance of the evidence, that the

weapon used in the robberies was a firearm and not a BB gun. The

court was persuaded by the testimony of the bank tellers, bank

surveillance photographs, and evidence obtained from a pattern of

robberies that occurred prior to the instant appeal. In light of

Booker and Hughes, we therefore find that the district court

plainly erred in sentencing Hammonds.2

Accordingly, we affirm Hammonds’ conviction, but vacate

his sentence and remand for proceedings consistent with Hughes.3
sentence must be "within the statutorily prescribed range and . .

. reasonable." Id. at 547.

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Id. at 546 (citing Booker, 125 S. Ct. at 764-65, 767 (Breyer, J.,

opinion of the Court)). 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.

AFFIRMED IN PART;

VACATED AND REMANDED IN PART