UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 04-4735

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

GARY ADRIAN CHURCH,

Defendant - Appellant.

Appeal from the United States District Court for the Middle

District of North Carolina, at Durham. Frank W. Bullock, Jr.,

District Judge. (CR-04-62)

Submitted: June 28, 2006 Decided: August 14, 2006

Before KING and SHEDD, Circuit Judges, and HAMILTON, Senior Circuit

Judge.

Affirmed in part, vacated in part, and remanded by unpublished per

curiam opinion.

Louis C. Allen, III, Federal Public Defender, Gregory Davis,

Assistant Federal Public Defender, Greensboro, North Carolina, for

Appellant. Anna Mills Wagoner, United States Attorney, L. Patrick

Auld, Assistant United States Attorney, Greensboro, North Carolina,

for Appellee.

Unpublished opinions are not binding precedent in this circuit.

See Local Rule 36(c).
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PER CURIAM:

Gary Adrian Church pled guilty to bank robbery, 18 U.S.C.

§ 2113(a) (2000), and was sentenced as a career offender to a term

of 156 months imprisonment. U.S. Sentencing Guidelines Manual

§ 4B1.1 (2003). Church’s attorney initially filed a brief pursuant

to Anders v. California, 386 U.S. 738 (1967), appealing “from the

judgment, including the sentence,” Appellant’s Br. at 1, and

raising three potential sentencing errors under Blakely v.

Washington, 542 U.S. 296 (2004): (1) the career offender sentence,

(2) the calculation of Church’s criminal history, and (3) the

calculation of the offense level. However, counsel asserted that,

in his view, there were no meritorious issues for appeal. Church

filed a pro se supplemental brief, also alleging Blakely error.

In a supplemental brief filed after the Supreme Court

decided United States v. Booker, 543 U.S. 220 (2005), Church argues

that the district court’s determination that he was a career

offender violated the Sixth Amendment and that the district court

also erred by applying the guidelines as mandatory. Church

maintains that he preserved the issue of the mandatory application

of the guidelines by making a Blakely objection to his sentence

enhancements and by moving for a downward departure. He further

contends that he was prejudiced by the court’s mandatory

application of the guidelines because the court’s comments

indicated that it likely would have imposed a lower sentence had it
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not been required to follow the guidelines. As explained below, we

affirm Church’s conviction, but we vacate his sentence and remand

for resentencing consistent with Booker. 

Church robbed a bank in Yadkinville, North Carolina, of

$1940 on January 6, 2004, and led police on a high-speed chase on

the highway and through residential areas. Church managed to evade

capture, but he was arrested a few days later. Because Church had

prior convictions for bank robbery, breaking and entering, and

common law robbery, the court determined that Church qualified for

sentencing as a career offender under USSG § 4B1.1. His guideline

range was 151-188 months. 

The district court overruled Church’s Blakely objection

to the career offender designation, then declined to depart

downward for diminished capacity based on sexual abuse Church

suffered as a child. The court noted that the case was not outside

the heartland, but added, “I don’t say that I’m not sympathetic.

And on a clean slate, would impose somewhat of a different

sentence.” The court opined that a departure was unlikely to be

affirmed. Favorably impressed by Church’s allocution, the court

indicated that it would impose a sentence that was “considerably

less” than it would usually impose for a defendant with such a long

criminal record. The court imposed a sentence of 156 months

imprisonment. The court commented that the sentence was “about

three years less than I would ordinarily give you or in that
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neighborhood. It’s still a sufficient time, and I think it’s fair

to you, fair to the government, and fair to the public.” 

First, Church’s Sixth Amendment claim is foreclosed by

United States v. Collins, 412 F.3d 515, 521-23 (4th Cir. 2005)

(applying Shepard v. United States, 544 U.S. 13 (2005)). Church

did not dispute that he satisfied the requirements for career

offender status; moreover, the court could determine from the

judicial record of Church’s prior robbery convictions that each

clearly qualified as a crime of violence. See USSG § 4B1.2(a) &

comment. (n.1) (defining “[c]rime of violence” to include robbery).

We conclude that no Sixth Amendment violation occurred. 

 However, the sentencing court erred under Booker in

treating the guidelines as mandatory. United States v. White, 405

F.3d 208, 215 (4th Cir.), cert. denied, 126 S. Ct. 668 (2005).

Because Church objected at sentencing under Blakely to being

sentenced as a career offender, we review this claim de novo.

United States v. Rodriguez, 433 F.3d 411, 415 (4th Cir. 2006). We

conclude that the court’s comments raise a question as to whether

it would have imposed a lesser sentence under an advisory

guidelines system. Therefore, the government has not shown that

the mandatory application of the guidelines was harmless error. 

Pursuant to Anders, this court has reviewed the record

for other reversible error and found none. We therefore affirm

Church’s conviction, but we vacate his sentence and remand the case
*Just as we noted in United States v. 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 Church’s sentencing.

Hughes, 401 F.3d 540, 545 n.4 (4th Cir. 2005).

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for resentencing consistent with Booker.* Although the sentencing

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 remand, the

district court should first determine the appropriate sentencing

range under the guidelines, making all factual findings appropriate

for that determination. United States v. Hughes, 401 F.3d 540, 546

(4th Cir. 2005). 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 imposing a non-guidelines sentence as

required by 18 U.S.C.A. § 3553(c)(2). Id. The sentence must be

“within the statutorily prescribed range and . . . reasonable.”

Id.

This court requires that counsel inform his client, in

writing, of his right to petition the Supreme Court of the United

States for further review. If the client requests that a petition

be filed, but counsel believes that such a petition would be

frivolous, then counsel may move this court for leave to withdraw
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from representation. Counsel’s motion must state that a copy

thereof was served on the client. 

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 IN PART,

 VACATED IN PART,

AND REMANDED