UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 03-4299

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

ROBERT DAVID BECKLEY, a/k/a Robert Kyle Lynch,

Defendant - Appellant.

On Remand from the Supreme Court of the United States.

(S. Ct. No. 04-6588)

Submitted: May 13, 2005 Decided: June 20, 2005

Before WIDENER, WILKINSON, and MOTZ, Circuit Judges.

Remanded for resentencing by unpublished per curiam opinion.

Camille Michel Davidson, THE FULLER LAW FIRM, P.C., Charlotte,

North Carolina, for Appellant. Anna Mills Wagoner, United States

Attorney, Robert M. Hamilton, 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Unpublished opinions are not binding precedent in this circuit.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:

Robert Beckley was convicted, after a guilty plea, on one

count of credit card fraud. We affirmed his conviction and

sentence, and subsequently denied rehearing. See United States v.

Beckley, No. 03-4299 (4th Cir. Apr. 20, 2004) (unpublished).

Beckley filed a petition for writ of certiorari in the

United States Supreme Court. His petition was granted, and this

court’s judgment was vacated, in light of the decision in United

States v. Booker, 125 S. Ct. 738 (2005). In re Beckley, 125 S. Ct.

1045 (2005). Beckley’s case has been remanded to this court for

further proceedings. Id. He has moved for release on bail pending

further proceedings on remand from the Supreme Court.

Beckley’s sentence was imposed prior to the decisions in

Booker and its predecessor, Blakely v. Washington, 124 S. Ct. 2531

(2004), and he did not raise objections to his sentence based on

the mandatory nature of the Sentencing Guidelines or the district

court’s application of sentencing enhancements based on facts not

admitted by Beckley or found by a jury beyond a reasonable doubt.

Therefore, we review his sentence for plain error. See United

States v. Hughes, 401 F.3d 540, 546-60 (4th Cir. 2005). Beckley’s
1U.S. Sentencing Guidelines Manual (USSG) § 2B1.1(a)(2) (2002

& Supp. 2003).

2USSG § 2B1.1(b)(1)(H).

3USSG § 2B1.1(b)(8)(C).

4USSG § 3E1.1. The Government does not challenge the

adjustment for acceptance of responsibility. 

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Guidelines range was calculated as follows:

Base offense level1 6

Intended loss of over $400,0002 + 14

Use of sophisticated means3 + 2

Adjusted offense level 22

Acceptance of responsibility4 - 3

Total offense level: 19

Criminal history category: III

Guidelines range: 37-46 months

The district court imposed a term of imprisonment of forty-four

months. If not for the enhancement based on use of sophisticated

means, a fact found by the district court (and disputed by Beckley

at sentencing), his offense level would be reduced by two levels,

resulting in a Guidelines range of 30-37 months. See USSG

§ 2B1.1(b)(8)(C). Moreover, if the district court had not enhanced

Beckley’s offense level for an amount of loss greater than the

amount he has essentially admitted – $48,058 – his offense level

would be reduced by another eight levels, for a Guidelines range of

8-14 months. See USSG § 2B1.1(b)(1)(D), (H). His forty-four month

sentence thus meets the standard for plain error that must be
5Just 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 Beckley’s sentencing.

See generally Johnson v. United States, 520 U.S. 461, 468 (1997)

(stating that an error is “plain” if “the law at the time of trial

was settled and clearly contrary to the law at the time of

appeal”).

6Although 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.” 125

S. Ct. at 767. On remand, the district court should first

determine the appropriate sentencing range under the Guidelines,

making all factual findings appropriate for that determination.

See Hughes, 401 F.3d at 546. The court should consider this

sentencing range along with the other factors described in 18

U.S.C. § 3553(a) (2000), and then impose a sentence. Id. If that

sentence falls outside the Guidelines range, the court should

explain its reasons for the departure as required by 18 U.S.C. §

3553(c)(2) (2000). Id. The sentence must be “within the

statutorily prescribed range and . . . reasonable.” Id. at 546-47.

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recognized under the reasoning set forth in Hughes.

5 Accordingly,

we grant Beckley’s motion to remand for resentencing in light of

Booker.

6

Finally, Beckley moves for bail pending further

proceedings on remand from the Supreme Court. Motions for bail

pending appeal are governed by 18 U.S.C. § 3143(b) (2000). See

United States v. Steinhorn, 927 F.2d 195, 196 (4th Cir. 1991). Of

particular relevance here, the court must consider whether the

appeal presents a substantial question, and whether, if that

question is decided in the defendant’s favor, the defendant is

likely to receive a sentence shorter than the sum of time served

plus the expected duration of the appeal process. 18 U.S.C.

§ 3143(b)(1)(B); see Steinhorn, 927 F.2d at 196.
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The Government concedes that a substantial question

exists about whether Beckley is entitled to resentencing.

Nevertheless, the Government argues that Beckley is not entitled to

release pending appeal because he has not shown a likelihood that,

on resentencing, he will receive a sentence shorter than “the total

of the time already served plus the expected duration of the appeal

process.” 18 U.S.C. § 3143(b)(1)(B)(iv). Beckley counters that

his sentence was enhanced based on facts not charged in the

indictment or found by a jury beyond a reasonable doubt. He

contends that because he has already served three quarters of his

forty-four month sentence, his appeal may result in a shorter

sentence, and if he is not released, the Supreme Court’s intent in

vacating this court’s judgment will be frustrated.

Beckley has demonstrated a substantial question regarding

the propriety of his sentence in light of Booker and Hughes.

However, the possibility that Beckley will receive a sentence on

remand that is less than the sum of the time remaining on his

sentence and the duration of the appeal process is speculative at

best. On remand, the district court will calculate a sentencing

range in accordance with the Guidelines, although that range will

be advisory rather than mandatory. See Booker, 125 S. Ct. at 767.

Neither Beckley’s base offense level nor his criminal history

category will change. Beckley has not shown that it is as likely

as not that the district court will elect to sentence him based on
7The district court may, of course, appoint counsel for

Beckley on resentencing.

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different facts than those applied in his first sentencing

proceeding, or exercise its discretion in his favor on the same

facts.

On this record, release on bail pending further

proceedings is not warranted. We deny as moot Beckley's petition

for a writ of mandamus seeking a ruling on the bail motion.

In sum, we grant Beckley’s motion to remand this case for

resentencing in light of Booker. We deny Beckley’s motions for

release on bail pending further proceedings. We grant Beckley’s

motion to file a pro se formal brief, grant Beckley’s motion to

proceed pro se in the present appeal, and grant counsel’s motion to

withdraw from further representation.7 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.

REMANDED FOR

 RESENTENCING