UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 03-4871

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

JAMES E. ORR, JR.,

Defendant - Appellant.

On Remand from the United States Supreme Court. 

(Supreme Court No. 04-7590)

Submitted: October 21, 2005 Decided: December 16, 2005

Before LUTTIG, TRAXLER, and SHEDD, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Robert C. Stone, Jr., Martinsburg, West Virginia, for Appellant.

Thomas E. Johnston, United States Attorney, Paul T. Camilletti,

Assistant United States Attorney, Martinsburg, West Virginia, for

Appellee.

Unpublished opinions are not binding precedent in this circuit.

See Local Rule 36(c).
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PER CURIAM:

A jury convicted James E. Orr, Jr., of the following

offenses: (1) possession of a sawed off shotgun, in violation of

26 U.S.C. §§ 5812, 5861(b), 5871 (2000), (2) knowingly receiving

and possessing a sawed off shotgun, in violation of 26 U.S.C.

§§ 5812, 5861(c), 5871 (2000), and (3) knowingly receiving and

possessing an unregistered sawed off shotgun, in violation of 26

U.S.C. §§ 5841, 5861(d), 5871 (2000). Orr’s base offense level was

eighteen. At the sentencing hearing, the district court overruled

Orr’s objections to the presentence report, enhanced Orr’s offense

level by two levels for obstruction of justice, denied Orr an

adjustment for acceptance of responsibility, and denied Orr a

departure for aberrant criminal behavior. Thus, Orr’s total

offense level was calculated to be twenty. With Orr’s criminal

history category of I, the guidelines range was thirty-three to

forty-one months. The court imposed a sentence of thirty-three

months for each count, to be served concurrently, two years of

supervised release, and $300 in special assessments. 

We affirmed Orr’s conviction and sentence. See United

States v. Orr, No. 03-4871, 2004 WL 1663996 (4th Cir. July 27,

2004) (unpublished). The Supreme Court thereafter granted Orr’s

petition for writ of certiorari, vacated this court’s judgment and

remanded to this court for further consideration in light of United

States v. Booker, 125 S. Ct. 738 (2005). Having reconsidered Orr’s
1

Although both Orr and the Government assert that the Booker

issue is preserved for appellate review, we conclude that Orr’s

objection to the application of the obstruction enhancement, which

was based on the asserted lack of evidentiary support for that

enhancement, did not preserve a claim that his sentence violated

his Sixth Amendment rights. However, even if we agreed that Orr’s

objection to the perjury enhancement in the district court properly

preserved his Booker claim on appeal, the circumstances of this

case would nevertheless dictate a conclusion that resentencing is

not required because Orr’s Sixth Amendment rights were not

infringed.

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sentence in light of Booker and its progeny, we affirm his

conviction and sentence.

On remand, Orr asserts his sentence violated his Sixth

Amendment rights in light of Booker because the district judge

improperly applied the two-level enhancement for obstruction of

justice based on a judicial finding that Orr committed perjury.

Orr further argues that because of the perjury finding, the court

erroneously denied his request for a two-level reduction based on

acceptance of responsibility. 

Booker applies to all cases pending on direct review at

the time it was decided. United States v. Booker, 125 S. Ct. at

769 (citing Griffith v. Kentucky, 479 U.S. 314, 328 (1987)).

Because Orr did not raise a Booker claim in the district court, his

challenge to his sentence is reviewed for plain error.1 See United

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

demonstrate plain error, a defendant must establish that error

occurred, that it was plain, and that it affected his substantial

rights. United States v. Olano, 507 U.S. 725, 731-32 (1993);
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Hughes, 401 F.3d at 547-48. If a defendant establishes 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).

In Booker, the Supreme Court held that the mandatory

guidelines scheme, which provided for sentence enhancements based

on facts found by the court rather than the jury, violated the

Sixth Amendment. The 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. 125 S. Ct. at 746-48, 755-56 (Stevens,

J.); 125 S. Ct. at 756-57 (Breyer, J.). Subsequently, in Hughes,

this court held that a sentence that was imposed under the preBooker mandatory sentencing scheme and was enhanced based on facts

found by the court, and not found by a jury or admitted by the

defendant, constitutes plain error that affects the defendant’s

substantial rights. Under Booker, resentencing is warranted when

the sentence “exceed[s] the maximum allowed based on the facts

found by the jury alone” and the record does not disclose what

discretionary sentence the district court would have imposed under

an advisory guideline scheme. Hughes, 401 F.3d at 546-47, 556. 
2In determining whether Sixth Amendment error occurred, the

sentence imposed must be compared to the permissible guideline

range before adjusting for acceptance of responsibility. See United

States v. Evans, 418 F.3d 298, 301 n.4 (4th Cir. 2005). As a

result, the fact that Orr did not receive a three-level reduction

for responsibility is not considered in the analysis of whether

resentencing is warranted.

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Here, the court’s finding that Orr committed perjury

subjected Orr to a two-level enhancement.2

 Without this

enhancement, Orr’s offense level would have been eighteen. With a

criminal history category of I, the corresponding guidelines range

is twenty-seven to thirty-three months. Orr’s actual sentence of

thirty-three months thus does not exceed the maximum allowed based

on the facts found by the jury alone. Accordingly, because the

sentence imposed on Orr did not violate his Sixth Amendment rights,

as recognized in Booker, resentencing is not warranted.

We therefore affirm Orr’s conviction and sentence. We

deny Orr’s motion for release pending appeal. 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