UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 04-4518

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

LIVINSON BRUMAIRE,

Defendant - Appellant.

Appeal from the United States District Court for the District of

South Carolina, at Florence. C. Weston Houck, Senior District

Judge. (CR-03-474)

Submitted: October 12, 2005 Decided: November 29, 2005

Before WILKINSON, NIEMEYER, and DUNCAN, Circuit Judges.

Affirmed in part; vacated and remanded in part by unpublished per

curiam opinion.

Creighton B. Coleman, Winnsboro, South Carolina, for Appellant.

Alfred W. Bethea, Jr., OFFICE OF THE UNITED STATES ATTORNEY,

Florence, South Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

See Local Rule 36(c).
1

To the extent Brumaire contends counsel was ineffective for

not preserving some of his issues, claims of ineffective assistance

of counsel are not cognizable on direct appeal unless the record

conclusively establishes ineffective assistance. United States v.

Richardson, 195 F.3d 192, 198 (4th Cir. 1999). To allow for

adequate development of the record, claims of ineffective

assistance generally should be brought in a 28 U.S.C. § 2255 (2000)

motion. United States v. King, 119 F.3d 290, 295 (4th Cir. 1997).

Because the record does not conclusively establish counsel was

ineffective, we decline to review that claim. 

- 2 -

PER CURIAM:

Livinson Brumaire appeals his conviction and sentence for

one count of conspiracy to possess with intent to distribute 50

grams of crack cocaine and 5 kilograms of cocaine, in violation of

21 U.S.C. §§ 841(b)(1)(A), 846 (2000). Brumaire’s attorney filed

a brief pursuant to Anders v. California, 386 U.S. 738 (1967),

stating that, in his opinion, there are no meritorious issues for

appeal. Counsel does assert however, that Brumaire’s sentence is

improper in light of Blakely v. Washington, 124 S. Ct. 2531 (2005),

and Apprendi v. New Jersey, 530 U.S. 466 (2000). Brumaire filed a

pro se supplemental brief challenging his sentence under United

States v. Booker, 543 U.S. , 125 S. Ct. 738 (2005), the

sufficiency of the evidence, the selection of the jury, and alleged

compliance with the Speedy Trial Act and his constitutional rights

to a speedy trial. Brumaire also contends his trial should have

been severed from his co-defendant and the prosecutor engaged in

misconduct during closing arguments.1 While we affirm the

conviction, we vacate the sentence and remand for resentencing. 
- 3 -

Brumaire was involved in a significant drug conspiracy

distributing crack cocaine in South Carolina. At trial, many of

Brumaire’s co-defendants testified against him. The evidence was

overwhelming that Brumaire was a significant operative in the

conspiracy that spanned several years. Accordingly, we find the

evidence was sufficient to support the conviction. Glasser v.

United States, 315 U.S. 60, 80 (1942) (stating standard). 

Brumaire’s challenge to the jury venire must fail. There

is no evidence he challenged the selection of the jury venire at

trial. Accordingly, review is waived. See 28 U.S.C. § 1867

(2000); United States v. Webster, 639 F.2d 174, 180 (4th Cir.

1981). Moreover, our review of the record shows no support for his

claim that representation of blacks in the venire was not fair and

reasonable or that there was a systemic exclusion of blacks from

the jury venire. United States v. Lewis, 10 F.3d 1086, 1089-90

(4th Cir. 1993). 

Brumaire’s contention that the Speedy Trial Act was

violated must fail. Because Brumaire did not object at trial,

review is for plain error. United States v. Olano, 507 U.S. 725,

732 (1993). Assuming, arguendo, there was error, Brumaire fails to

show the error affected his substantial rights. See United

States v. White, 405 F.3d 208, 223 (4th Cir. 2005). With respect

to the constitutional guarantee of a speedy trial, we find the

delay was not sufficient to trigger a speedy trial inquiry.
- 4 -

Doggett v. United States, 505 U.S. 647, 651-52 (1992); Barker v.

Wingo, 407 U.S. 514, 530 (1972). Finally, there is no evidence the

prosecutor engaged in misconduct during closing arguments.

Brumaire’s claim that the prosecutor engaged in misconduct and he

was prejudiced by such conduct is purely speculative and without

foundation. 

The jury found beyond a reasonable doubt Brumaire was

responsible for 50 grams or more of crack cocaine and 5 kilograms

of cocaine. Combining these drug amounts would have resulted in a

base offense level of 32, with a corresponding guideline range of

121 to 151 months’ imprisonment for Brumaire’s criminal history

category. At sentencing, however, the district court found

Brumaire was responsible for 90.68 kilograms of crack cocaine, for

an offense level of 38. See U.S. Sentencing Guidelines Manual

§ 2D1.1(c)(1) (2003). Two points were added based upon Brumaire

being a leader, organizer, manager, or supervisor of at least three

other individuals. See USSG § 3B1.1(c). Brumaire’s total offense

level was 40. The result was a guideline sentence of 292 to 365

months’ imprisonment. Neither the drug quantity nor the leadership

enhancement were found by the jury beyond a reasonable doubt or

admitted by Brumaire. Brumaire’s sentence was imposed prior to the

decisions in Booker and Blakely, 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
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 Brumaire’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”).

3

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.” 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.

- 5 -

enhancements based on facts not admitted by him 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). His sentence of 292 months’ imprisonment meets

the standard for plain error that must be recognized under the

reasoning set forth in Hughes.2 Accordingly, we will vacate

Brumaire’s sentence and remand for resentencing in light of

Booker.3

Accordingly, we affirm the conviction and vacate and

remand his sentence for resentencing consistent with Booker and

Hughes. We deny the following motions filed by Brumaire:

(1) December 21, 2004 motion to relieve and substitute attorney;
- 6 -

(2) January 24, 2005 motion to substitute attorney; (3) February

10, 2005 motion to compel counsel to withdraw the Anders brief;

(4) February 18, 2005 motion to withdraw counsel; (5) April 18,

2005 motion to compel discovery; and (6) September 22, 2005 motion

to relieve counsel. To the extent Brumaire seeks transcripts of

the voir dire and closing arguments, we deny the request. 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 AND REMANDED IN PART