UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 03-4055

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

VANDER KEITH GORE, a/k/a Keith,

Defendant - Appellant.

No. 03-4102

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

JEFFREY LEE GORE, a/k/a Jeff,

Defendant - Appellant.

On Remand from the Supreme Court of the United States.

(S. Ct. Nos. 04-5762; 04-5763)

Submitted: March 27, 2006 Decided: May 31, 2006

Before KING, SHEDD, and DUNCAN, Circuit Judges.
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No. 03-4055 affirmed; No. 03-4102 affirmed in part; vacated and

remanded in part by unpublished per curiam opinion.

Jerry L. Finney, FINNEY LAW FIRM, Columbia, South Carolina; Jack B.

Swerling, SWERLING LAW FIRM, Columbia, South Carolina, for

Appellants. Jonathan S. Gasser, 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Unpublished opinions are not binding precedent in this circuit.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).
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PER CURIAM:

These cases are before us on remand from the United

States Supreme Court for further consideration in light of United

States v. Booker, 543 U.S. 220 (2005). In June 2001, Jeffrey Lee

Gore (“Jeffrey Gore”) and his brother, Vander Keith Gore (“Keith

Gore”), were indicted for multiple violations of 21 U.S.C. §§

841(a)(1), 846 (2000). The Gore brothers entered into plea

agreements and, consistent with these agreements, pled guilty to

the first count of the superseding indictment. In January 2003,

Jeffrey Gore was sentenced to 360 months’ imprisonment, and Keith

Gore was sentenced to 240 months’ imprisonment. 

In United States v. Gore, 93 Fed App’x 569 (4th Cir.

Apr. 6, 2004) (unpublished), vacated, 125 S. Ct. 1035 (2005), we

affirmed their sentences. After reviewing Jeffrey Gore’s appeal in

light of Booker, we vacate his sentence and remand for

resentencing. After reviewing Keith Gore’s appeal in light of

Booker, we affirm his sentence. Their convictions are affirmed for

the reasons stated in our 2004 opinion.

In Booker, the Supreme Court held that the mandatory

manner in which the Sentencing Guidelines required courts to impose

sentencing enhancements based on facts found by the court by a

preponderance of the evidence violated the Sixth Amendment. 543

U.S. at 244.
1Specifically, consideration of only the conduct to which

Jeffrey Gore admitted in his plea agreement and at the sentencing

hearing yielded a total offense level of forty-two; based on a

criminal history category of I, Jeffrey Gore’s range of

imprisonment under the Sentencing Guidelines would have been 360

months to life imprisonment. This is precisely the range of

imprisonment calculated by the district court. Although the court

impermissibly enhanced Jeffrey Gore’s offense level based on facts

he did not admit, the court also reduced the offense level for

acceptance of responsibility, and we do not consider that reduction

on appeal. See United States v. Evans, 416 F.3d 298, 300 n.4 (4th

Cir. 2005) (looking to the guideline range based on admitted

conduct or facts found by a jury and disregarding any reduction for

acceptance of responsibility). Therefore, Jeffrey Gore’s 360-month

sentence does not violate the Sixth Amendment. See id. at 300-01

(holding that if a sentence does not exceed the maximum authorized

by facts admitted by defendant or found by jury, there is no Sixth

Amendment violation).

2Just 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 sentencing.

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There are two types of error under Booker: a violation

of the Sixth Amendment, by imposing a sentence greater than the

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

defendant, and a failure to treat the Sentencing Guidelines as

advisory. United States v. Hughes, 401 F.3d 540, 552 (4th Cir.

2005).

Although we do not find that the district court committed

the first type of error in Jeffrey Gore’s case,1 we conclude that

the district court erred in applying the Sentencing Guidelines as

mandatory.2 Because Jeffrey Gore did not preserve this claim in

the district court, we review for plain error. See Hughes, 401

F.3d at 547.
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In United States v. White, 405 F.3d 208 (4th Cir.), cert.

denied, 125 S. Ct. 668 (2005), we held that treating the guidelines

as mandatory was error in light of Booker, and that the error was

plain. White, 405 F.3d at 216-17. We declined to presume

prejudice, id. at 217-22, holding that the “prejudice inquiry,

therefore, is . . . whether after pondering all that happened

without stripping the erroneous action from the whole, . . . the

judgment was . . . substantially swayed by the error.” Id. at 223

(internal quotation marks and citations omitted). 

To make this showing, 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.” Id. 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

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

concluded in White that the error did not affect the defendant’s

substantial rights, and thus, we affirmed the sentence. Id. at

225; see also United States v. Collins, 412 F.3d at 524-25 (finding

that defendant failed to demonstrate prejudice from being sentenced

under a mandatory application of the sentencing guidelines).

Here, there is a nonspeculative basis on which to

conclude the district court’s application of the Sentencing
3Although the Guidelines are no 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 264. On

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Guidelines as mandatory affected its selection of the sentence

imposed upon Jeffrey Gore. During the sentencing hearing, the

district court noted that [its] “discretion by the sentencing

guidelines is severely limited, and [it has] to live within the

law.” It sentenced Jeffrey Gore in accordance with the Sentencing

Guidelines, remarking of the 360-month sentence, “[I]f you say it

fast, it might not sound like much, but it is a lifetime. It is a

lot of time. And I think that’s more than enough in this

particular case.”

The 360-month sentence represented the bottom of the

applicable Sentencing Guidelines range. Because the district court

remarked that the sentence imposed was “more than enough” time in

Jeffrey Gore’s case, there exists a nonspeculative basis for

concluding that the treatment of the guidelines as mandatory

affected the district court’s selection of the sentence imposed.

White, 405 F.3d at 223; see also 18 U.S.C. § 3553(a) (2000)

(providing that the court “shall impose a sentence sufficient, but

not greater than necessary,” to meet the statutory objectives of

punishment, deterrence, avoidance of sentencing disparities, and

the like). Accordingly, we vacate Jeffrey Gore’s sentence and

remand his case to the district court for resentencing in light of

Booker.3
remand, the sentence must be “within the statutorily prescribed

range and . . . reasonable.” Hughes, 401 F.3d at 547.

Specifically, district courts must (1) properly calculate the

sentence range recommended by the Sentencing Guidelines;

(2) determine whether a sentence within that range and within

statutory limits serves the factors set forth in 18 U.S.C.A.

§ 3553(a) (West 2000 & Supp. 2005) and, if not, select a sentence

that does serve those factors; (3) implement mandatory statutory

limitations; and (4) articulate the reasons for selecting the

particular sentence, especially explaining why a sentence outside

of the Sentencing Guideline range better serves the relevant

sentencing purposes set forth in § 3553(a). United States v.

Green, 436 F.3d 449, 455-56 (4th Cir. 2006). A sentence not

imposed within the properly calculated range must be based on the

factors listed under § 3553(a). Id. at 456. 

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Keith Gore was sentenced to 240 months’ imprisonment for

his offense. See 21 U.S.C. § 841(b)(1)(A) (2000). This term was

the statutory mandatory minimum sentence, as the Government had

alleged in the superseding indictment and provided notice in a 21

U.S.C. § 851 (2000) information that he had one prior conviction

for a felony drug offense. This enhanced penalty was permissible.

See Almendarez-Torres v. United States, 523 U.S. 224, 233-36,

243-44 (1998) (marking an exception, in the case of a fact of a

prior conviction, to the general rule that a district court may not

impose a sentence greater than the maximum authorized by the facts

found by the jury or admitted by the defendant in a guilty plea);

Harris v. United States, 536 U.S. 545, 567-68 (2002) (holding that

Apprendi v. New Jersey, 530 U.S. 466 (2000), applies to facts that

increase the sentence beyond the statutory maximum, but not to

facts that merely increase the mandatory minimum sentence); United
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States v. Cheek, 415 F.3d 349, 351-54 (4th Cir. 2005) (reaffirming

validity of Almendarez-Torres after Booker).

The district court correctly set the bottom of the

Sentencing Guidelines range at 240 months’ imprisonment. Although

Keith Gore correctly notes that the district court erred in

sentencing him under the then-mandatory Sentencing Guidelines,

Booker is of no assistance to him. As we held in United States v.

Robinson, 404 F.3d 850, 862 (4th Cir. 2005), “Booker did nothing to

alter the rule that judges cannot depart below a statutorily

provided minimum sentence.” Accordingly, we affirm Keith Gore’s

sentence.

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.

No. 03-4055 AFFIRMED

No. 03-4102 AFFIRMED IN PART;

VACATED AND REMANDED IN PART