UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 04-4814

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

JESS CALVIN TONEY,

Defendant - Appellant.

Appeal from the United States District Court for the Western

District of Virginia, at Charlottesville. Norman K. Moon, District

Judge. (CR-03-116)

Submitted: October 28, 2005 Decided: September 19, 2006

Before NIEMEYER, MOTZ, and KING, Circuit Judges.

Affirmed by unpublished per curiam opinion.

David B. Franzén, FEIL, PETTIT & WILLIAMS, PLC, Charlottesville,

Virginia, for Appellant. John L. Brownlee, United States Attorney,

Nancy S. Healey, Assistant United States Attorney, Charlottesville,

Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

See Local Rule 36(c).
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PER CURIAM:

Jess Calvin Toney appeals from his sentence and

convictions entered after a jury found him guilty of possession of

a firearm in furtherance of a drug trafficking crime in violation

of 18 U.S.C.A. § 924(c)(1) (West 2000 & Supp. 2006) (Count 1) and

possession of a firearm while being an unlawful user of controlled

substances in violation of 18 U.S.C. § 922(g)(3) (2000) (Count 2).

Toney was sentenced to 60 months of imprisonment for Count 1 and 57

months consecutively for Count 2, for a total sentence of 117

months. On appeal, Toney argues that his sentence was imposed in

violation of Blakely v. Washington, 542 U.S. 296 (2004), which has

since been extended to the Federal Sentencing Guidelines by United

States v. Booker, 543 U.S. 220 (2005), and that the district court

erred by allowing certain letters into evidence. For the reasons

that follow, we affirm.

Toney contends that the enhancements to his sentence for

drug weight and obstruction of justice violate the Sixth Amendment

under Booker. Because Toney preserved this issue by objecting

below, we review de novo. See United States v. Mackins, 315 F.3d

399, 405 (4th Cir. 2003). When a defendant preserves 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.

(citation omitted).
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The Government admits that there was a Sixth Amendment

violation in this case because Toney’s sentence was enhanced by

facts not necessarily found by the jury. The district court,

however, imposed an identical, alternative sentence under 18

U.S.C.A. § 3553(a) (West 2000 & Supp. 2006), in the event the

Guidelines were found to be unconstitutional, following this

court’s opinion in United States v. Hammoud, 381 F.3d 316 (4th Cir.

2004), vacated on other grounds, 543 U.S. 1097 (2005). Because the

district court explicitly stated that it would have imposed the

same sentence even under an advisory guideline system, the Sixth

Amendment error was harmless beyond a reasonable doubt. See United

States v. Shatley, 448 F.3d 264, 267 (4th Cir. 2006) (holding that

because the district court announced an identical alternative

sentence, treating the Sentencing Guidelines as advisory and

considering the statutory sentencing factors in 18 U.S.C.A.

§ 3553(a), the government has met its burden of demonstrating that

the constitutional error was harmless). We also find no reversible

error in the fact that the district court only mentioned its

alternative sentence in its written judgment.

We do not find that the district court abused its

discretion by allowing certain letters written by Toney to his wife

to be admitted and for Toney to be cross-examined using the

letters. United States v. Bostian, 59 F.3d 474, 480 (4th Cir.

1995) (holding that a district court has broad discretion in ruling
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on the relevance and admissibility of evidence which will not be

reversed absent an abuse of discretion). We note that the letters

to which Toney objects were introduced only after he had testified

on direct examination that the credibility of his wife was suspect

as evidenced by letters she had written to him. “[W]hen a

defendant takes the stand, his credibility may be impeached and his

testimony assailed like that of any other witness.” Portuondo v.

Agard, 529 U.S. 61, 69 (2000) (internal quotation and citation

omitted). We therefore find this claim fails.

Accordingly, we affirm Toney’s convictions and sentence.

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