UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 10-5008

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

v.

MANTEL DELANCE MUBDI,

Defendant – Appellant.

On Remand from the Supreme Court of the United States.

(S. Ct. No. 12-7398) 

Submitted: July 26, 2013 Decided: August 27, 2013

Before SHEDD, DAVIS, and DIAZ, Circuit Judges.

Vacated and remanded by unpublished per curiam opinion.

ARGUED: Matthew Segal, FEDERAL DEFENDERS OF WESTERN NORTH 

CAROLINA, INC., Asheville, North Carolina, for Appellant. Amy 

Elizabeth Ray, OFFICE OF THE UNITED STATES ATTORNEY, Asheville, 

North Carolina, for Appellee. ON BRIEF: Claire J. Rauscher, 

Executive Director, Kevin A. Tate, Assistant Federal Defender, 

FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA, INC., Charlotte, 

North Carolina, for Appellant. Anne M. Tompkins, United States 

Attorney, Melissa L. Rikard, Assistant United States Attorney, 

OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina 

for Appellee.

Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:

Mantel Delance Mubdi entered a conditional guilty plea to

conspiracy to distribute and possess with intent to distribute a 

quantity of cocaine and at least 50 grams of cocaine base

(“crack cocaine”), in violation of 21 U.S.C. § 846, possession 

with intent to distribute a quantity of cocaine and at least 50 

grams of crack cocaine, in violation of 21 U.S.C. § 841, and two 

firearms offenses not at issue here. Although the Fair 

Sentencing Act of 2010 (“FSA”), Pub. L. No. 111-220, 124 Stat. 

2372, went into effect prior to Mubdi’s sentencing, the district 

court sentenced him to a total of 300 months’ imprisonment in 

accordance with pre-FSA law. On appeal, this court affirmed the 

district court over Mubdi’s objection that the district court’s 

use of judicial factfinding to find facts that increased the 

mandatory minimum sentence violated his Fifth and Sixth 

Amendment rights. United States v. Mubdi, 691 F.3d 334, 344-45 

(4th Cir. 2012). The Supreme Court granted Mubdi’s petition for 

writ of certiorari, vacated this court’s judgment, and remanded 

for further consideration in light of Alleyne v. United States, 

133 S. Ct. 2151 (2013). Because of intervening changes in law, 

we vacate Mubdi’s sentence and remand to the district court for 

resentencing. 
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I.

The presentence investigation report (“PSR”) found Mubdi 

responsible for 290.5 grams of crack cocaine. Because of a 

prior felony drug conviction, Mubdi faced a twenty-year 

mandatory minimum sentence under pre-FSA law. Mubdi did not 

object to the PSR’s finding that the crime involved 290.5 grams, 

but he did argue that the FSA governed his sentence, and that

under the FSA the district court had the authority to impose a 

sentence of less than twenty years. The government argued that 

it was irrelevant which law applied because Mubdi was in fact 

responsible for 290.5 grams of crack cocaine--enough to trigger 

a twenty-year mandatory minimum under either law. The district 

court rejected Mubdi’s argument and sentenced him to concurrent 

twenty-year sentences for the narcotics offenses.*

 

For the first time on appeal, Mubdi contended that the 

district court also violated his Fifth and Sixth Amendment 

rights by increasing the mandatory minimum sentence he faced 

based on the 290.5 grams the district court found Mubdi actually 

possessed, rather than the 50 grams to which Mubdi admitted. If 

the court had used 50 grams to determine the mandatory minimum, 

 * Mubdi also received a concurrent ten-year sentence for 

being a felon in possession of a firearm, in violation of 18 

U.S.C. § 922(g)(1), and a consecutive five-year sentence for

possession of a firearm in furtherance of a drug trafficking 

crime, in violation of 18 U.S.C. § 924(c).
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Mubdi would have faced a mandatory minimum ten-year sentence. 

This court found that his argument was foreclosed by Harris v. 

United States, 536 U.S. 545, 568 (2002) (holding that increasing 

mandatory minimums based on judicial factfinding does not 

violate the Sixth Amendment).

After we decided Mubdi’s appeal, the Supreme Court 

overruled Harris in Alleyne and held that facts which increase 

mandatory minimum sentences must be admitted or submitted to the 

jury and established beyond a reasonable doubt. 133 S. Ct. at 

2163. Thus, the district court’s finding that Mubdi’s crime 

involved 290.5 grams of cocaine, a finding that increases the 

the mandatory minimum sentence, is impermissible. 

Since the briefing in this case, the Supreme Court has also 

held that the FSA applies to pre-FSA offenders sentenced after 

the Act’s effective date. Dorsey v. United States, 132 S. Ct. 

2321, 2331 (2012). Thus, the FSA applies to Mubdi. We 

reconsider Mubdi’s sentence in light of these intervening 

changes. 

II.

Mubdi did not preserve his Sixth Amendment claim before the 

district court; therefore, we review his sentencing argument for 

plain error. United States v. Lynn, 592 F.3d 572, 577 (4th Cir. 

2010). An error is plain when it is clear or obvious, and
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affects substantial rights. Id. Even if the law at the time of 

sentencing is “settled and clearly contrary to the law at the 

time of appeal,” an error need only be “plain” at the time of 

appellate review. Johnson v. United States, 520 U.S. 461, 468 

(1997). Thus, even though the error was not clear to the 

district court at the time of Mubdi’s sentencing--in fact, it 

was settled that the district court was correct at that time--it 

is now clear and obvious that the district court erred in 

finding facts that raised Mubdi’s mandatory minimum sentence. 

The error also affected Mubdi’s substantial rights. To 

establish this element, Mubdi must show that the error actually 

affected the outcome of the proceedings, i.e., that his 

“sentence was longer than that to which he would otherwise be 

subject.” United States v. Angle, 254 F.3d 514, 518 (4th Cir. 

2001) (en banc). If the district court applied the FSA’s 

mandatory minimum for 50 grams of cocaine, it is possible that 

Mubdi’s sentence would be ten years shorter. Of course, the 

district court may impose the same sentence on remand, but there 

is nothing in the parties’ briefs that suggests such an outcome 

is inevitable, nor is this possibility enough to deter us from 

noticing the error. Cf. United States v. Hughes, 401 F.3d 540, 

556 & n.14 (4th Cir. 2005). 

Even when plain error is established, an appellate court 

may correct the error only if “not doing so would result in a 
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miscarriage of justice, or would otherwise seriously affect the 

fairness, integrity or public reputation of judicial 

proceedings.” United States v. Whitfield, 695 F.3d 288, 303 

(4th Cir. 2012) (internal quotations omitted). We have 

previously held that a failure to notice an error where the 

sentence is in excess of that permitted by the jury verdict 

because of a Sixth Amendment violation would have such an 

effect. See United States v. Hughes, 401 F.3d 540, 555 (4th 

Cir. 2005). In light of Alleyne, we conclude that a Sixth 

Amendment violation involving a mandatory minimum sentence would 

equally diminish the integrity and public reputation of the 

judicial system. Accordingly, the district court plainly erred 

by basing Mubdi’s mandatory minimum sentence on its finding that 

Mubdi’s crime involved 290.5 grams of cocaine, rather than a 

fact to which he admitted--responsibility for 50 grams. 

III.

For the foregoing reasons, we vacate Mubdi’s sentence and 

remand this case for resentencing.

VACATED AND REMANDED