UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 03-4967

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

EDWARD VENEZ SHIPMAN,

Defendant - Appellant.

On Remand from the Supreme Court of the United States.

(S. Ct. No. 04-7409)

Submitted: July 31, 2006 Decided: September 22, 2006

Before WILLIAMS, TRAXLER, and DUNCAN, Circuit Judges.

Vacated and remanded by unpublished per curiam opinion.

Thomas P. McNamara, Federal Public Defender, Raleigh, North

Carolina, for Appellant. Frank D. Whitney, United States Attorney,

Anne M. Hayes, Christine Witcover Dean, Assistant United States

Attorneys, Raleigh, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

See Local Rule 36(c).
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PER CURIAM:

Edward Venez Shipman (“Shipman”) pled guilty to

possession of a firearm by a convicted felon, 18 U.S.C. § 922(g)(1)

(2000), and was sentenced to a term of eighty-four months of

imprisonment. We affirmed his sentence. Subsequently, the Supreme

Court granted certiorari, vacated this court’s judgment in light of

the decision in United States v. Booker, 543 U.S. 220 (2005), and

remanded his case for further proceedings. United States v.

Shipman, 107 F. App’x 354 (4th Cir. 2004) (No. 03-4967), vacated,

543 U.S. 1114 (2005).

Shipman was sentenced before the decisions in Booker and

its predecessor, Blakely v. Washington, 592 U.S. 296 (2004), and he

did not raise objections to his sentence based on the mandatory

nature of the sentencing guidelines or the district court’s

application of sentencing enhancements based on judicial fact

finding rather than facts he admitted. Therefore, we review his

sentence for plain error. United States v. Hughes, 401 F.3d 540,

546-60 (4th Cir. 2005). Shipman now contends that the district

court plainly erred under Booker in applying the guidelines as

mandatory and in enhancing his sentence for possession of the

firearm in connection with another felony because the enhancement

violated the Sixth Amendment. With respect to the district court’s

mandatory application of the guidelines, the court gave no

indication of what sentence it would impose under an advisory
1For purposes of determining Booker error, we consider the

guideline range based on facts Shipman admitted before the

reduction for acceptance of responsibility. United States v.

Evans, 416 F.3d 298, 300 n.4 (4th Cir. 2005).

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guideline system. Therefore, Shipman cannot show actual prejudice

and resentencing is not authorized on this ground, independent of

a Sixth Amendment error. United States v. White, 405 F.3d 208,

223-24 (4th Cir. 2005). However, we conclude that the sentence

violated the Sixth Amendment.

Shipman’s base offense level was 20, pursuant to U.S.

Sentencing Guidelines Manual § 2K2.1(a)(4)(A) (2003). He received

a four-level increase under § 2K2.1(b)(5), upon the district

court’s finding that he intended to distribute the marijuana he

possessed when he was arrested with the illegal firearm. Shipman

contested this enhancement, arguing that the evidence did not show

an intent to distribute, but the district court overruled his

objection. Shipman also received a three-level adjustment for

acceptance of responsibility. His final offense level was 21.

Shipman was in criminal history category V, which gave him a

guideline range of 70-87 months. The court imposed a sentence of

eighty-four months. Without the enhancement for possession of the

gun in connection with another felony, Shipman’s offense level

would have been 20 and the guideline range, based on facts he

admitted, would have been 63-78 months.1 Shipman’s sentence of
2Just as we noted in Hughes, “[w]e of course offer no

criticism of the district court judge, who followed the law and

procedure in effect at the time” of Shipman’s sentencing.” Hughes,

401 F.3d at 545 n.4. See generally Johnson v. United States, 520

U.S. 461, 468 (1997) (stating that an error is “plain” if “the law

at the time of trial was settled and clearly contrary to the law at

the time of appeal”).

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eighty-four months thus meets the standard for plain error that

must be recognized under the standard set out in Hughes.2

 

The government asserts that the enhancement was supported

by Shipman’s admission (through his guilty plea) that he possessed

the firearm while in possession of marijuana, because simple

possession of marijuana after any prior drug conviction is a

federal felony offense. See 21 U.S.C. § 844(a) (2000). Shipman

was convicted of simple possession of marijuana in 2001. In our

prior per curiam opinion affirming Shipman’s sentence, we agreed

that this fact could provide an alternative ground for affirmance.

However, in light of Booker, we must take note of the fact that

Shipman did not admit he possessed the firearm “in connection with”

his possession of the marijuana. See United States v. Milam, 443

F.3d 382, 387 (4th Cir. 2006) (holding that, for Booker purposes,

defendant’s silence in response to presentence report does not

constitute admission of facts in report on which sentence

enhancement is based). We therefore conclude that resentencing is

necessary.

For the reasons discussed, we vacate the sentence and

remand for resentencing. Although the sentencing guidelines are no
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longer mandatory, Booker makes clear that a sentencing court must

still “consult [the] Guidelines and take them into account when

sentencing.” 543 U.S. at 265. 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. 2006), 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.A. § 3553(c)(2) (West Supp. 2006). Id. The

sentence must be “within the statutorily prescribed range and . . .

reasonable.” Id. 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