UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 04-4240

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

ROBERT LEE CYRUS,

Defendant - Appellant.

Appeal from the United States District Court for the District of

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

Judge. (CR-03-55)

Submitted: September 28, 2005 Decided: October 18, 2005

Before WIDENER and SHEDD, Circuit Judges, and HAMILTON, Senior

Circuit Judge.

Affirmed in part, vacated in part, and remanded by unpublished per

curiam opinion.

D. Craig Brown, THE LAW OFFICE OF D. CRAIG BROWN, P.C., Florence,

South Carolina, for Appellant. Alfred William Walker Bethea, Jr.,

Assistant United States Attorney, Florence, 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Unpublished opinions are not binding precedent in this circuit.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 Cyrus’ 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:

Robert Lee Cyrus appeals his sentence of 235 months of

imprisonment imposed after he pleaded guilty to one count of

conspiracy to possess with intent 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 Cyrus’ plea, and whether it erred in enhancing Cyrus’

sentence under U.S. Sentencing Guidelines Manual (“USSG”) § 3A1.2

(b)(1) (2002), based on Blakely v. Washington, 542 U.S. 296 (2004).

Cyrus 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 Cyrus’ sentence was enhanced based

upon facts not charged in the indictment or admitted by Cyrus, 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 Cyrus did not object to the sentencing range of

235 to 293 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, Cyrus 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 Cyrus’

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 Cyrus’ plea hearing, with which he explicitly

agreed. However, Cyrus also received a three-level enhancement of

his offense level for official victim, pursuant to USSG

§ 3A1.2(b)(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 Cyrus, and because, absent this

enhancement, Cyrus’ guidelines range would have been 168 to 210

months, below the range in which Cyrus was sentenced. 

In his Anders brief, counsel also asserts error in the

district court’s acceptance of Cyrus’ plea because Cyrus failed to

verbally respond to every question posed by the court during his
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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Rule 11 plea colloquy. We find that Cyrus’ plea colloquy was

proper and conducted in accordance with the law, see United States

v. DeFusco, 949 F.2d 114, 117, 120 (4th Cir. 1991), and further

find that there is no showing that Cyrus’ failure to verbally

respond to each of the district court’s questions adversely

affected his substantial rights. 

As required by Anders, we have examined the entire record

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

affirm Cyrus’ conviction, vacate his sentence, and remand for

resentencing in accordance with Booker and Hughes.3 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