UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 03-4493

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

WAYNE ALLEN FLETCHER,

Defendant - Appellant.

On Remand from the United States Supreme Court.

(S. Ct. No. 04-1331)

Submitted: August 29, 2005 Decided: September 28, 2005

 

Before WILLIAMS and SHEDD, Circuit Judges, and Henry E. HUDSON,

United States District Judge for the Eastern District of Virginia,

sitting by designation.

Vacated and remanded by unpublished per curiam opinion.

Keith Alan Williams, KEITH A. WILLIAMS, P.A., Greenville, North

Carolina, Richard William Westling, New Orleans, Louisiana, for

Appellant. Christine Witcover Dean, Anne Margaret Hayes, 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Unpublished opinions are not binding precedent in this circuit.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:

On November 18, 2004, this court affirmed Wayne Allen

Fletcher’s convictions and sentence. See United States v.

Fletcher, No. 03-4493, 2004 WL 2617726 (4th Cir. Nov. 18, 2004)

(unpublished). On May 16, 2005, the Supreme Court of the United

States granted Fletcher’s petition for writ of certiorari, vacated

our judgment and remanded the case to this court for further

consideration in light of United States v. Booker, 543 U.S. ,

125 S. Ct. 738 (2005). We vacate the sentence and remand for

resentencing. 

In Booker, the Supreme Court held Blakely v. Washington,

542 U.S. 296 (2004), applied to the federal sentencing guidelines

and that the mandatory manner in which the guidelines required

courts to impose sentencing enhancements based on facts found by

the court by a preponderance of the evidence violated the Sixth

Amendment. Thus, when a defendant pleads guilty and is sentenced

under the mandatory guidelines scheme, “[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, 543 U.S. at

 , 125 S. Ct. at 756. 

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

we held that a sentence imposed under the pre-Booker mandatory
1We take no position with respect to the Government’s argument

that some of the enhancements were based upon admitted conduct

because Fletcher did not object at sentencing to those

enhancements.

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sentencing scheme that was enhanced based on facts found by the

court, not by a jury (or, in a guilty plea case, admitted by the

defendant), constitutes plain error. That error affects the

defendant’s substantial rights and warrants reversal under Booker

when the record does not disclose what discretionary sentence the

district court would have imposed under an advisory guideline

scheme. Hughes, 401 F.3d at 546-56. 

Because the district court engaged in judicial factfinding to determine Fletcher’s offense level and the resulting

guideline range was imposed in a mandatory manner, there was a

Sixth Amendment violation under Booker.1 On remand, the court must

calculate the appropriate guideline range, consider the range in

conjunction with other relevant factors under the guidelines and 18

U.S.C.A. § 3553(a) (West 2000 & Supp. 2005), and impose a sentence.

If a court imposes a sentence outside the guideline range, the

district court must state its reasons for doing so. Hughes, 401

F.3d at 546. 
2

The convictions were affirmed in our prior opinion and are

not before us now. 

3Just as we noted in United States v. Hughes, 401 F.3d 540,

545 n.4 (4th Cir. 2005), “[w]e of course offer no criticism of the

district judge, who followed the law and procedure in effect at the

time” of Fletcher’s sentencing. 

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Accordingly, we vacate the sentence and remand for

further consideration in light of Booker and Hughes.2 3 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