UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 04-4540

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

KEAT SHAUN WINGATE,

Defendant - Appellant.

Appeal from the United States District Court for the District of

South Carolina, at Columbia. Matthew J. Perry, Jr., Senior

District Judge. (CR-03-15)

Submitted: October 14, 2005 Decided: November 7, 2005

Before WILKINSON, KING, and SHEDD, Circuit Judges.

Affirmed in part, vacated in part, and remanded by unpublished per

curiam opinion.

Langdon D. Long, Assistant Federal Public Defender, Columbia, South

Carolina, for Appellant. Jonathan S. Gasser, Acting United States

Attorney, Stanley D. Ragsdale, Assistant United States Attorney,

Columbia, South Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

See Local Rule 36(c).
1

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

2Just as we noted in United States v. Hughes, 401 F.3d 540,

545 n.4 (4th Cir. 2005), “[w]e of course offer no criticism of the

district judge, who followed the law and procedure in effect at the

time” of Wingate’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”).

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PER CURIAM:

Keat Shaun Wingate appeals his sentence of 262 months of

imprisonment imposed after he pleaded guilty to one count of

conspiracy to distribute 50 grams or more of cocaine base, in

violation of 21 U.S.C. § 846 (2000). Counsel has filed an Anders1

brief asserting that there are no meritorious issues for appeal,

but questioning whether the district court complied with the

requirements of Fed. R. Crim. P. 11 when it accepted Wingate’s

plea, and whether it erred in sentencing Wingate as a career

offender pursuant to U.S. Sentencing Guidelines Manual (“USSG”)

§ 4B1.1 (2002). Wingate was notified of his right to file a pro se

supplemental brief, and did so, raising a claim pursuant to Blakely

v. Washington, 542 U.S. 296 (2004). Because we conclude that

Wingate’s sentence was enhanced based upon facts not charged in the

indictment or admitted by Wingate, we vacate his sentence and

remand.2

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

Supreme Court applied the rationale of Blakely to the federal

sentencing guidelines and held that the mandatory guidelines scheme
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that provided for sentence enhancements based on facts found by the

court by a preponderance of the evidence 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, not admitted to 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 guidelines scheme. Hughes, 401 F.3d at 546-56.

The court directed sentencing courts to calculate the appropriate

guidelines 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 guidelines range, the court

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

Because Wingate did not object to the sentencing range of

262 to 327 months of imprisonment determined by the district court,
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we review the district court’s guidelines 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, Wingate 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

Wingate’s base offense level was properly determined and is

supported by the drug quantity alleged in the indictment and

included in the factual basis stated at Wingate’s plea hearing,

with which he explicitly agreed. However, Wingate also received a

five-level enhancement of his offense level for career offender,

pursuant to USSG § 4B1.1. 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 Wingate, and because,

absent this enhancement, Wingate’s guidelines range would have been

135 to 168 months, below the range in which Wingate was sentenced.

In his Anders brief, counsel also asserts error in the

district court’s acceptance of Wingate’s plea. We find that

Wingate’s plea colloquy was proper and conducted in accordance with
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.

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the law. See United States v. DeFusco, 949 F.2d 114, 117, 120 (4th

Cir. 1991). 

As required by Anders, we have examined the entire record

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

affirm Wingate’s conviction, vacate his sentence, and remand for

resentencing in accordance with Booker and Hughes.3 We grant leave

to Wingate to file his pro se supplemental brief and deny his

motion to relieve his attorney. 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