UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 05-4186

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

LUTHER EL-THOMAS JONES,

Defendant - Appellant.

Appeal from the United States District Court for the Middle

District of North Carolina, at Durham. James A Beaty, Jr.,

District Judge. (CR-04-275)

Submitted: November 9, 2005 Decided: January 24, 2006

Before WILKINSON, KING, and GREGORY, Circuit Judges.

Affirmed in part, vacated in part, and remanded by unpublished per

curiam opinion.

Duane K. Bryant, LAW OFFICES OF DUANE K. BRYANT, High Point, North

Carolina, for Appellant. Kearns Davis, Assistant United States

Attorney, Greensboro, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

See Local Rule 36(c).
1

Apprendi v. New Jersey, 530 U.S. 466 (2000).

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PER CURIAM:

Luther El-Thomas Jones pled guilty to theft of firearms

from a licensed firearms dealer, in violation of 18 U.S.C. § 922(u)

(2000). He was sentenced to 13 months of imprisonment, followed by

three years of supervised release. He appeals his sentence.

Jones first argues on appeal that the district court

erred in applying a four-level enhancement to his base offense

level because the number of firearms stolen was more than eight but

less than twenty-four, pursuant to U.S. Sentencing Guidelines

Manual (USSG) § 2K2.1(b)(1)(B) (2004), and a two-level enhancement

based upon his role in the offense for using or attempting to use

a person less than 18 years of age in the offense, USSG § 3B1.4. 

Because Jones preserved these issues by objecting at

sentencing based upon Blakely v. Washington, 542 U.S. 296 (2004),

our review is de novo. See United States v. Mackins, 315 F.3d 399,

405 (4th Cir. 2003) (“If a defendant has made a timely and

sufficient Apprendi[1] sentencing objection in the trial court, and

so preserved his objection, we review de novo.”). When a defendant

preserves a Sixth Amendment error, “we must reverse unless we find

this constitutional error harmless beyond a reasonable doubt, with

the Government bearing the burden of proving harmlessness.” Id.

(citations omitted); see United States v. White, 405 F.3d 208, 223

(4th Cir. 2005) (discussing difference in burden of proving that
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error affected substantial rights under harmless error standard in

Fed. R. App. P. 52(a), and plain error standard in Fed. R. App. P.

52(b)).

In United States v. Booker, the Supreme Court held that

the mandatory manner in which the federal sentencing guidelines

required courts to impose sentencing enhancements based on facts

found by the court by a preponderance of the evidence violated the

Sixth Amendment. 125 S. Ct. 738, 746, 750 (2005) (Stevens, J.,

opinion of the Court). The Court remedied the constitutional

violation by severing two statutory provisions, 18 U.S.C.A.

§ 3553(b)(1) (West Supp. 2005) (requiring sentencing courts to

impose a sentence within the applicable guideline range), and 18

U.S.C.A. § 3742(e) (West 2000 & Supp. 2005) (setting forth

appellate standards of review for guideline issues), thereby making

the guidelines advisory. See United States v. Hughes, 401 F.3d

540, 546 (4th Cir. 2005) (citing Booker, 125 S. Ct. at 756-67

(Breyer, J., opinion of the Court)).

After Booker, courts must calculate the appropriate

guideline range, consider the range in conjunction with other

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

and impose a sentence. If a court imposes a sentence outside the

guideline range, the district court must state its reasons for

doing so. Hughes, 401 F.3d at 546. This remedial scheme applies

to any sentence imposed under the mandatory guidelines, regardless
2

See United States v. Evans, 416 F.3d 298, 300 n.4 (4th Cir.

2005).

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of whether the sentence violates the Sixth Amendment. Id. at 547

(citing Booker, 125 S. Ct. at 769 (Breyer, J., opinion of the

Court)).

Without the enhancements and without the reduction Jones

received for acceptance of responsibility,2 Jones’ offense level

would have been twelve and, thus, his guideline range would have

been ten to sixteen months of imprisonment. USSG Ch. 5, Pt. A

(Sentencing Table). Because the thirteen month sentence Jones

received is within that guideline range, we find no Sixth Amendment

error. Evans, 416 F.3d at 300-01. 

Jones also argues the district court erred in applying

the federal sentencing guidelines as mandatory in violation of

Booker. Jones set forth a general objection in the district court

based on Blakely. The issue of whether a general Blakely objection

raised at sentencing preserves for appellate review a claim that

the district court erred in treating the guidelines as mandatory

has not been decided. However, even assuming, without deciding,

that the plain error standard--the more demanding standard for

Jones--applies, we find Jones’ sentence under the then-mandatory

guidelines is in error. In White, we recognized that a sentence

that does not violate the Sixth Amendment may involve cognizable

plain error when it appears the district court would have imposed
3Just 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 Jones’ 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”).

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a lesser sentence if it had treated the guidelines as advisory.

405 F.3d at 223. Here, the district court announced a lower

alternate sentence of five months that it might have imposed on

Jones had the court not been under the now-erroneous understanding

that application of the guidelines was mandatory.3 We therefore

vacate Jones’ sentence and remand the case 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.” 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 (applying Booker on

plain error review). 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).
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Id. The sentence must be “within the statutorily prescribed range

and . . . reasonable.” Id. at 546-47. 

Accordingly, we affirm the conviction, but vacate Jones’

sentence and remand for resentencing in accordance with Booker. 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