UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 04-4422

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

CARL RICHARD FELDER, JR., a/k/a Rab,

Defendant - Appellant.

Appeal from the United States District Court for the District of

South Carolina, at Charleston. David C. Norton, District Judge.

(CR-99-751)

Submitted: August 26, 2005 Decided: October 18, 2005

Before LUTTIG, MOTZ, and KING, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Jessica Salvini, SALVINI & BENNETT, L.L.C., Greenville, South

Carolina, for Appellant. J. Strom Thurmond, Jr., United States

Attorney, Miller W. Shealy, Jr., Assistant United States Attorney,

Charleston, South Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

See Local Rule 36(c).
- 2 -

PER CURIAM:

On May 17, 2000, Carl Richard Felder, Jr., pled guilty to

conspiracy to possess with intent to distribute and distribute a

quantity of cocaine base in violation of 21 U.S.C. §§ 841(a)(1),

846. On July 6, 2000, after pleading guilty and awaiting

sentencing, Felder violated his bond by fleeing his residence and

becoming a fugitive. Felder was apprehended by the U.S. Marshals

Service on June 3, 2002. On October 16, 2002, Felder was sentenced

to 240 months’ imprisonment. On appeal, we vacated the district

court’s judgment and remanded for reconsideration of whether Felder

qualified as a career offender and, if not, resentencing. See

United States v. Felder, Nos. 02-4858, 02-4922, 2004 WL 728197 (4th

Cir. Apr. 6, 2004) (unpublished). 

On remand, a revised Presentence Report (“PSR”) was

prepared. The PSR recommended, as it had before, adding two levels

to the base offense level for obstruction of justice under U.S.

Sentencing Guidelines § 3C1.1, which provides in application note

4(e) that obstruction of justice includes “escaping or attempting

to escape from custody before trial or sentencing.” No objections

were made to the PSR. The court concluded Felder was not a career

offender and sentenced him to 72 months’ imprisonment. 

In this second appeal, Felder asserts his sentence is

unconstitutional in light of Blakely v. Washington, 542 U.S. 296

(2004), the precursor to United States v. Booker, 125 S. Ct. 738
- 3 -

(2005). Felder argues that because a jury did not determine the

factual basis for the obstruction of justice enhancement and he did

not admit to the underlying facts supporting the enhancement, the

sentence violates the Sixth Amendment. After thoroughly reviewing

the record, we conclude Felder did admit to the underlying facts

supporting the enhancement and the sentence therefore does not

violate the Sixth Amendment. 

Booker applies to all cases pending on direct review at

the time it was decided. Booker, 125 S. Ct. at 769 (citing

Griffith v. Kentucky, 479 U.S. 314, 328 (1987)). In Booker, the

Supreme Court held that the federal sentencing guidelines’

mandatory scheme, which provides for sentencing enhancements based

on facts found by the court, violated the Sixth Amendment. Booker,

125 S. Ct. at 746 (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. 2004) (requiring

sentencing courts to impose a sentence within the applicable

guideline range), and 18 U.S.C.A. § 3742(e) (West 2000 & Supp.

2004) (setting forth appellate standards of review for guideline

issues), thereby making the guidelines advisory. Booker, 125 S.

Ct. at 756-57 (Breyer, J., opinion of the Court)); United States v.

Hughes, 401 F.3d 540, 546 (4th Cir. 2005). After Booker, courts

must calculate the appropriate guideline range, consider the range

in conjunction with other relevant factors under the guidelines and
- 4 -

18 U.S.C. § 3553(a) (2000), and impose a sentence. If a court

imposes a sentence outside the guideline range, the 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 of whether the sentence violates the Sixth

Amendment. Id. at 547 (citing Booker, 125 S. Ct. at 769).

Because Felder did not preserve a Booker claim in the

district court, his constitutional claims under Blakely and Booker

are reviewed for plain error. Hughes, 401 F.3d at 547. To

demonstrate plain error, a defendant must establish that error

occurred, that it was plain, and that it affected his substantial

rights. United States v. Olano, 507 U.S. 725, 731-32 (1993);

Hughes, 401 F.3d at 547-48. If a defendant establishes these

requirements, “[o]ur discretion is appropriately exercised only

when failure to do so would result in a miscarriage of justice,

such as when the defendant is actually innocent or the error

seriously affects the fairness, integrity or public reputation of

judicial proceedings.” Hughes, 401 F.3d at 555 (internal quotation

marks and citation omitted).

We conclude the district court did not plainly err in

applying the obstruction of justice enhancement. Olano, 507 U.S.

at 731-32; Hughes, 401 F.3d at 546-47, 556. At sentencing,

Felder’s counsel stated, “[w]hat the Government said is correct,

and he was on bond and was a fugitive until sometime later when he
- 5 -

was apprehended.” Felder’s counsel further argued that Felder had

been punished enough for being a fugitive. She stated that if

Felder had not been a fugitive, he would not have had the two-level

increase in his offense level for obstruction of justice, and he

would have been entitled to a decrease of three levels for

acceptance of responsibility. Furthermore, in his appellate brief,

Felder acknowledges that he fled his residence and was a fugitive.

We therefore conclude Felder admitted to the facts supporting the

obstruction of justice enhancement and there is no Sixth Amendment

violation. Booker, 125 S. Ct. at 746.

We next consider whether the court plainly erred by

applying the sentencing guidelines as mandatory and whether Felder

demonstrates such error affected his substantial rights. See

United States v. White, 405 F.3d 208, 223 n.10 (4th Cir. 2005)

(citing Hughes, 401 F.3d at 551); see also Olano, 507 U.S. at 734-

35. We conclude that Felder fails to make such a showing. The

court sentenced Felder in the middle of the applicable guidelines

range. Moreover, the court did not indicate a sentence below the

guidelines range was appropriate. Accordingly, there is no nonspeculative basis for concluding that the district court would have

imposed a shorter sentence on Felder had it known that the

guidelines should not have been applied in a mandatory fashion.

Therefore, we conclude the error, even if plain, did not affect

Felder’s substantial rights.
- 6 -

Accordingly, we affirm Felder’s 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