UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 05-4127

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

CAVARGGIO SHERNARD TURNER,

Defendant - Appellant.

Appeal from the United States District Court for the District of

South Carolina, at Greenville. Henry M. Herlong, Jr., District

Judge. (CR-04-604)

Submitted: July 13, 2005 Decided: August 3, 2005

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

Circuit Judge.

Affirmed in part, vacated and remanded by unpublished per curiam

opinion.

David W. Plowden, Assistant Federal Public Defender, Greenville,

South Carolina, for Appellant. Elizabeth Jean Howard, OFFICE OF

THE UNITED STATES ATTORNEY, Greenville, South Carolina, for

Appellee.

Unpublished opinions are not binding precedent in this circuit.

See Local Rule 36(c).
1

Anders v. California, 386 U.S. 738 (1967).

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PER CURIAM:

Cavarggio Shernard Turner appeals his sentence of 165

months of imprisonment imposed after he pleaded guilty to one count

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

U.S.C. §§ 922(g)(1), 924(a)(2) (2000); one count of possession with

intent to distribute five grams or more of crack cocaine, in

violation of 21 U.S.C. § 841(a)(1), (b)(1)(B), (b)(1)(D) (2000);

and one count of using and carrying a firearm during and in

relation to, and possessing a firearm in furtherance of, a drug

trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A) (2000).

Counsel has filed an Anders1

 brief asserting that there are no

meritorious issues for appeal, but questioning whether the district

court erred in sentencing Turner pursuant to a mandatory guideline

scheme. Turner was notified of his right to file a pro se

supplemental brief, but has not done so. The Government declined

to file a brief. Because we conclude that Turner’s sentence on

Counts One and Two was enhanced based upon facts not charged in the

indictment or admitted by Turner, we vacate his sentence and

remand.

In United States v. Booker, 125 S. Ct. 738 (2005), the

Supreme Court applied the rationale of Blakely v. Washington, 542

U.S. 296 (2004), to the federal sentencing guidelines and held that

the mandatory guidelines scheme that provided for sentence
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enhancements based on facts found by the court violated the Sixth

Amendment. Booker, 125 S. Ct. at 746-48, 755-56 (Stevens, J.,

opinion of the Court). The Court remedied the constitutional

violation by severing and excising the statutory provisions that

mandate sentencing and appellate review under the guidelines, thus

making the guidelines advisory. Id. at 756-57 (Breyer, J., opinion

of the Court).

Subsequently, in United States v. Hughes, 401 F.3d 540,

546 (4th Cir. 2005), this court held that a sentence that was

imposed under the pre-Booker mandatory sentencing scheme and 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 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. The

court directed sentencing courts to calculate the appropriate

guideline range, consider that range in conjunction with other

relevant factors under the guidelines and 18 U.S.C.A. § 3553(a)

(West 2000 & Supp. 2004), and impose a sentence. If the district

court imposes a sentence outside the guideline range, the court

should state its reasons for doing so. Id. at 546.

Because Turner did not object to the sentencing range of

eighty-four to 105 months of imprisonment for Counts One and Two
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 Turner's sentencing.

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set forth in the presentence report and adopted by the district

court, we review the district court’s guideline calculation for

plain error. United States v. Olano, 507 U.S. 725, 732 (1993);

Hughes, 401 F.3d at 547. Under the plain error standard, Turner

must show: (1) there was error; (2) the error was plain; and

(3) the error affected his substantial rights. Olano, 507 U.S. at

732-34. Even when these conditions are satisfied, this court may

exercise its discretion to notice the error only if the error

“seriously affect[s] the fairness, integrity or public reputation

of judicial proceedings.” Id. at 736. (internal quotation marks

omitted).

Our review of the record leads us to conclude that

Turner’s base offense level for Counts One and Two was properly

determined and is supported by drug quantity alleged in the

indictment and included in the factual basis stated at Turner’s

plea hearing, with which he explicitly agreed. Turner also

received a two-level enhancement of his offense level for reckless

endangerment during flight, pursuant to U.S. Sentencing Guidelines

Manual § 3C1.2 (2003). We conclude that the imposition of this

enhancement was error under the Sixth Amendment as applied in

Booker, because the facts supporting this enhancement were not

alleged in the indictment or admitted by Turner.2 Because Turner
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”).

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did not object to the presentence report, the district court was

not required to resolve any factual disputes concerning this

enhancement. If this enhancement were removed, Turner’s total

offense level would be twenty-three, and his sentencing range on

Counts One and Two seventy to eighty-seven months. Because the

105-month sentence imposed as to Counts One and Two does not fall

within the guideline range calculated without the two-level

enhancement, Turner’s sentence constitutes plain error that affects

his substantial rights and requires resentencing pursuant to Booker

and Hughes.

In his Anders brief, counsel asserts error in the

application of the guidelines as a mandatory sentencing

determinant, but does not specify any facts or statements by the

district court that indicated that it would possibly have imposed

a lesser sentence under an advisory scheme. Because Turner’s

sentence was affected by a Sixth Amendment error and he will be

resentenced under an advisory guideline scheme, we decline to

consider counsel’s argument.

As required by Anders, we have examined the entire record

and find no other meritorious issues for appeal. Accordingly, we

affirm Turner’s conviction, vacate his sentence and remand for
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resentencing in accordance with Booker and Hughes. 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