UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 03-4773

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

LANTIS JETON YOUNG,

Defendant - Appellant.

On Remand from the United States Supreme Court.

(S. Ct. No. 04-6461)

Submitted: November 18, 2005 Decided: January 10, 2006

Before WILLIAMS and TRAXLER, Circuit Judges, and HAMILTON, Senior

Circuit Judge.

Affirmed by unpublished per curiam opinion.

Randolph M. Lee, Charlotte, North Carolina, for Appellant.

Gretchen C. F. Shappert, United States Attorney, Charlotte, North

Carolina; Amy E. Ray, Assistant United States Attorney, Asheville,

North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

See Local Rule 36(c).
1

Young also argues that because the verdict did not apportion

the culpability for the conspiracy to distribute cocaine and

cocaine base, the sentence imposed runs contrary to this court’s

decision in United States v. Collins, 415 F.3d 304 (4th Cir. 2005).

However, this count was grouped with count four, use of a handgun

in relation to drug trafficking resulting in death, for purposes of

calculating the guidelines range. As a result, Young’s relative

culpability was not a factor in the calculation.

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PER CURIAM:

This case is before the court on remand from the United

States Supreme Court. We previously affirmed Lantis Jeton Young’s

conviction. United States v. Young, No. 03-4773, 100 F. App’x 214

(4th Cir. 2004) (unpublished). The Supreme Court vacated our

decision and remanded Young's case to us for further consideration

in light of United States v. Booker, 125 S. Ct. 738 (2005).

In Young’s supplemental brief, filed at this court’s

direction after the Supreme Court’s remand, he contends the

sentences on count one, conspiracy to possess with intent to

distribute cocaine and cocaine base, count three, possession with

intent to distribute cocaine, and count five, carjacking, were

based on facts not found by the jury, and that the life

imprisonment term for count two, drug trafficking resulting in

death, was erroneous in light of Booker because it was imposed

under a mandatory sentencing guidelines scheme.1

 The Government

acknowledges that the sentence imposed for count five, carjacking,

was based on facts not found by the jury. However, the Government

argues that the error does not affect Young’s substantial rights
2

Under USSG Ch.5 Pt. A, comment. (n.2), a total offense level

of more than 43 is to be treated as an offense level of 43.

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because the error will not affect the total amount of time Young is

required to serve.

Under U.S. Sentencing Guidelines Manual § 3D1.2(b)

(2003), the probation officer grouped together three of the counts

of conviction: conspiracy to possess with intent to distribute

cocaine and cocaine base (count one), use and carry of a handgun

during a drug trafficking crime resulting in death (count two), and

possession with intent to distribute cocaine (count three). For

those counts, the recommended base offense level was forty-three.

Two levels were added for obstruction of justice, for an adjusted

offense level of forty-five. The offense level was reduced to

forty-three, the highest level in the sentencing table.2 

For the carjacking count (count five), USSG § 2B3.1

(robbery) called for a base offense level of twenty. Six levels

were added because a firearm was used. Four levels were added

because a person was abducted to facilitate the commission of the

offense, and two levels were added because the offense involved

carjacking, for an adjusted offense level of thirty-two. After the

multiple-count adjustment under USSG § 3D1.4, the combined adjusted

offense level was found to be forty-five, with a total offense

level of forty-three. For the count alleging using and carrying

a firearm during the commission of a drug trafficking crime (count
3

Young acknowledges that the terms of imprisonment he received

for counts four and six do not offend Booker.

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four), as well as the count alleging using and carrying a firearm

during and in relation to a crime of violence (count six), the

guideline sentence is the minimum term required by statute.3

The judge sentenced Young to two terms of life imprisonment on

counts one and two, two terms of 240 months’ imprisonment on counts

four and six to run consecutively with each other and the life

imprisonment terms, and one term of 180 months’ imprisonment on

count five to run concurrently with the other terms of

imprisonment. 

This court has identified two types of Booker error: a

violation of the Sixth Amendment, and a failure to treat the

sentencing guidelines as advisory. United States v. Hughes, 401

F.3d 540, 552 (4th Cir. 2005). A Sixth Amendment error occurs when

the district court imposes a sentence greater than the maximum

permitted based on facts found by a jury or admitted by the

defendant. Booker, 125 S. Ct. at 756. Because Young did not raise

a Sixth Amendment challenge or object to the mandatory application

of the guidelines in the district court, review is for plain error.

Hughes, 401 F.3d at 547. 

To demonstrate plain error, an appellant must establish

that an error occurred, that it was plain, and that it affected his

substantial rights. United States v. Olano, 507 U.S. 725, 731-32
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(1993); Hughes, 401 F.3d at 547-48. If an appellant meets these

requirements, the court’s “discretion is appropriately exercised

only when failure to do so would result in a miscarriage of

justice, such as when the defendant is actually innocent or the

error seriously affects the fairness, integrity or public

reputation of judicial proceedings.” Hughes, 401 F.3d at 555

(internal quotation marks and citation omitted). While the

mandatory application of the guidelines constitutes plain error,

United States v. White, 405 F.3d 208, 217 (4th Cir. 2005), a

defendant who seeks resentencing on this ground must show actual

prejudice, i.e., a “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 (quoting

Williams v. United States, 503 U.S. 193, 203 (1992)). 

Young was sentenced to life imprisonment on counts one

and two. On each of these counts, the offense level under the

sentencing guidelines was forty-three, USSG § 2A1.1(a); that

offense level was based on the jury’s finding that Young committed

a murder during the course of the conspiracy. Because the offense

level was based on the jury’s verdict, and because an offense level

of forty-three calls for a life sentence under the guidelines

regardless of the defendant’s criminal history, Young’s sentence on

these counts does not violate the Sixth Amendment. USSG Ch. 5, Pt.

A, Sentencing Table. Moreover, nothing in the sentencing
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transcript or elsewhere in the record suggests that the district

court would have given Young a lower sentence if the guidelines

were not mandatory. Therefore, Young has not established plain

error that warrants resentencing under United States v. White, 405

F.3d 208, 223 (4th Cir. 2005). 

As the Government concedes, Young’s 180-month sentence on

count five, carjacking, was based on facts not found by the jury or

admitted by Young. However, we conclude that because the sentence

on count five runs concurrently with the life sentences on counts

one and two, he cannot show that his substantial rights have been

violated by the imposition of a sentence based on judge-found facts

on count five. See United States v. Ellis, 326 F.3d 593, 599-600

(4th Cir. 1993).

Finally, the 240-month sentences on counts three, four,

and six are statutory mandatory minimum sentences. See 18 U.S.C.

§ 924(c)(1) (2000); 21 U.S.C. § 841(b)(1)(C) (2000). As such, we

find they are not impacted by Booker. 

Accordingly, we reinstate our June 16, 2004 opinion

affirming Young’s conviction, and we affirm Young's sentence after

our reconsideration in light of Booker. We deny Young’s motion to

remand for resentencing. We dispense with oral argument because

the facts and legal contentions are adequately presented in the
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materials before the court and argument would not aid the

decisional process. 

AFFIRMED