UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 04-4397

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

JAMAL HICKS,

Defendant - Appellant.

Appeal from the United States District Court for the Western

District of Virginia, at Big Stone Gap. Glen M. Williams, Senior

District Judge. (CR-03-10088)

Submitted: September 30, 2005 Decided: November 15, 2005

Before LUTTIG, MICHAEL, and DUNCAN, Circuit Judges.

Affirmed in part, vacated in part, and remanded by unpublished per

curiam opinion.

Louis Dene, DENE & DENE, P.C., Abingdon, Virginia, for Appellant.

John L. Brownlee, United States Attorney, R. Lucas Hobbs, Assistant

United States Attorney, Abingdon, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

See Local Rule 36(c).
 1

Because Hicks did not preserve this claim of error in the

district court, we review for plain error. United States v.

Hughes, 401 F.3d 540, 547 (4th Cir. 2005).

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PER CURIAM:

Jamal Hicks appeals his conviction and sentence on a

charge of assaulting a federal correctional officer, in violation

of 18 U.S.C. §§ 111(a)(1), 111(b) (2000). The district court

adopted the findings set forth in the presentence investigation

report, and, after applying a two-level enhancement to Hicks’ base

offense level pursuant to U.S. Sentencing Guidelines Manual

(“USSG”) § 2A2.2(b)(3)(A) (2003), he sentenced Hicks as a career

offender pursuant to USSG § 4B1.1. Specifically, the district

court sentenced Hicks at the low end of the calculated guidelines

range to 210 months’ imprisonment, three years of supervised

release, and ordered him to pay restitution in the amount of

$1167.52, and a $100 assessment. In so sentencing Hicks, the

district court made a statement that it considered the sentencing

range to be high, but that it was bound to sentence Hicks within

the federal guidelines. 

Hicks’ attorney has filed a brief pursuant to Anders v.

California, 386 U.S. 738 (1967), asserting plain error1 by the

district court pursuant to Blakely v. Washington, 542 U.S. 296

(2004), in sentencing him as a career offender, but concluding that

the enhancement was properly applied by the district court and that

there are no meritorious grounds for appeal. In his pro se

supplemental brief, Hicks asserts claims of ineffective assistance

of counsel, denial of due process, violation of his Sixth Amendment
 2

Just as we noted in Hughes, 401 F.3d at 545 n.4, “[w]e of

course offer no criticism of the district judge, who followed the

law and procedure in effect at the time” of Hicks’ sentencing.

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rights, and sentencing error relative to his sentence as a career

offender. In addition to consideration of the issues raised by

Hicks and his counsel, in accordance with the requirements of

Anders, we have examined the entire record and find no meritorious

issues for appeal not discussed herein. 

We conclude that Hicks is entitled to be resentenced

under United States v. Booker, 125 S. Ct. 738 (2005).2 Booker held

that the “Sixth Amendment is violated when a district court, acting

pursuant to the Sentencing Reform Act and the guidelines, imposes

a sentence greater than the maximum authorized by the facts found

by the jury alone.” United States v. Hughes, 401 F.3d 540, 547

(4th Cir. 2005). The Supreme Court remedied the constitutional

violation by severing and excising the statutory provisions that

mandate sentencing and appellate review under the guidelines, thus

making the guidelines advisory. Booker, 125 S. Ct. at 756-57

(opinion of Justice Breyer for the Court). In Hughes, this court

found Hughes’ sentence exceeded the maximum sentence authorized by

the facts found by the jury alone, in violation of Booker. Id. at

547. Hughes raised the issue for the first time on appeal and

review was for plain error. Id. Under plain error review, this

court found there was error, the error was plain, and the error

affected Hughes’ substantial rights. Id. at 546-56 (citing United

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

recognized the error because “failure to notice such an error would
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seriously affect the fairness, integrity, or public reputation of

judicial proceedings.” Id. at 555. 

Here, the district court’s enhancement by a preponderance

of the evidence of Hicks’ sentence for an offense that involved

bodily injury pursuant to USSG § 2A2.2(b)(3)(A) clearly was a

violation pursuant to Booker, because absent that enhancement,

Hicks’ offense level would have been two offense levels below that

on which he ultimately was sentenced, with an attendant lower

guidelines range. Hence, that enhancement was plain error, which

this court recognizes under Booker.

Turning to the career offender enhancement, in Booker,

the Supreme Court reaffirmed its prior holding in Apprendi 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. This court has held that the

application of the career offender enhancement falls within the

exception for prior convictions where the facts are undisputed,

making it unnecessary for the district court to engage in further

fact finding about a prior conviction. United States v. Collins,

412 F.3d 515, 521-23 (4th Cir. 2005); see Shepard v. United States,

125 S. Ct. 1254 (2005) (holding that a court’s inquiry as to

disputed facts in connection with a prior conviction is limited to

the terms of the charging document, a plea agreement, a transcript

of the plea colloquy, or a comparable judicial record). In
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Collins, we concluded there was no Sixth Amendment violation. 412

F.3d at 523. 

Hicks’ assertion that his Sixth Amendment rights were

violated when the district court made impermissible factual

findings to classify him as a career offender survives Collins

because Hicks disputes that he satisfied the requirements for

career offender status. Specifically, Hicks points to the fact

that one of the predicate offenses relied upon by the district

court in sentencing him as a career offender was a juvenile

conviction for robbery with a deadly weapon, committed when he was

seventeen years of age. Here, the district court used the

guidelines range from the PSR in rendering Hicks’ sentence, which

was predicated on Hicks’ qualification as a career offender. In

classifying Hicks as a career offender, the PSR in fact relied on

an offense that occurred when Hicks was seventeen years of age,

with an attendant conviction that occurred more than five years

prior to the date of the instant conviction, for which Hicks

received a probation sentence, with no imprisonment term. USSG

§ 4B1.1, comment. (n.1); USSG § 4A1.2(d) comment. (n.7). Moreover,

this claim may transcend Booker because it appears, on its face,

that the district court sentenced Hicks as a career offender based

on a juvenile conviction which may have been improper, in addition

to being based on the district court’s fact-finding by a

preponderance of the evidence, the latter of which offends Hicks’

Sixth Amendment rights.
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We further find that Hicks’ sentence also is clearly

erroneous because the district court imposed it pursuant to a

mandatory guidelines scheme. In United States v. White, 405 F.3d

208, 216-17 (4th Cir. 2005), this court considered whether treating

the guidelines as mandatory was plain error in light of Booker, and

held that it was. However, we declined to presume prejudice,

finding that a defendant must “demonstrate, based on the record,

that the treatment of the guidelines as mandatory caused the

district court to impose a longer sentence than it otherwise would

have imposed.” White, 405 F.3d at 224. Because “the record as a

whole provide[d] no nonspeculative basis for concluding that the

treatment of the guidelines as mandatory ‘affect[ed] the district

court’s selection of the sentence imposed,’” id. at 223, we

concluded that the error did not affect the defendant’s substantial

rights and affirmed the sentence. Id. at 225. 

Here, in sentencing Hicks, the district court announced

that it considered the guidelines range to be high, thus providing

conclusive evidence to support the conclusion that had it not been

constrained by the then-mandatory guidelines, it would have imposed

a lower sentence. The district court’s statement provides a nonspeculative demonstration that the error seriously affected the

outcome of Hicks’ proceedings. See White at 223. Thus, the plain

error standard has been met. For the foregoing reasons, we vacate

Hicks’ sentence and remand for further proceedings. 

Hicks further asserts on appeal that both his trial and

his appellate attorneys were ineffective, and that he was thereby
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denied due process. Claims of ineffective assistance of counsel

should be raised by motion under 28 U.S.C. § 2255 (2000), in the

district court, unless it conclusively appears from the record that

counsel failed to provide effective representation. United States

v. DeFusco, 949 F.2d 114, 120-21 (4th Cir. 1991). We find that it

does not conclusively appear from the face of the record that

Hicks’ attorneys failed to provide effective representation

sufficient for the claim to be cognizable on direct appeal.

Accordingly, we affirm Hicks’ conviction, vacate his

sentence, and remand for resentencing. We deny Hicks’ motion to

relieve counsel, and 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 IN PART, AND REMANDED