UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 04-4767

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

JONATHAN LEE SHULL,

Defendant - Appellant.

Appeal from the United States District Court for the Western

District of North Carolina, at Asheville. Lacy H. Thornburg,

District Judge. (CR-04-18)

Submitted: February 10, 2006 Decided: March 13, 2006

Before LUTTIG, MOTZ, and KING, Circuit Judges.

Vacated and remanded by unpublished per curiam opinion.

Eric A. Bach, Charlotte, North Carolina, for Appellant. Gretchen

C. F. Shappert, United States Attorney, Charlotte, North Carolina,

Donald David Gast, Assistant United States Attorney, Asheville,

North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

See Local Rule 36(c).
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PER CURIAM:

Jonathan Lee Shull robbed two banks in North Carolina and

subsequently entered into a plea agreement pursuant to which he

pled guilty to two counts of bank robbery, 18 U.S.C. § 2113(a)

(2000). Shull also was charged in an information with the armed

robbery of a bank in Tennessee. See 18 U.S.C. § 2113(d) (2000).

The Tennessee case was transferred to the Western District of North

Carolina pursuant to Fed. R. Crim. P. 20, and the cases were

consolidated for sentencing. 

With respect to the most serious of the three crimes, the

Tennessee robbery, the probation officer assigned a base offense

level of 20. See U.S. Sentencing Guidelines Manual § 2B3.1(a)

(2003). Two levels were added because property of a financial

institution was taken. See USSG § 2B3.1(b)(1). Six levels were

added because Shull used a firearm during the robbery. See USSG

§ 2B3.1(b)(2)(B). One level was added based on amount of loss.

See USSG § 2B3.1(b)(7)(B). Finally, two levels were added for

obstruction of justice because Shull escaped from custody while

awaiting sentencing. See USSG § 3C1.1. His adjusted offense level

was 31. The offenses were grouped. See USSG § 3D1.4. The total

number of units was 2, and the offense level was accordingly

increased by two, for a total offense level of 33. With a criminal

history category of VI, Shull’s guideline range was 235-293 months.
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Shull raised a Sixth Amendment challenge to the

presentence report. In particular, Shull denied using a firearm

during the Tennessee robbery and contended that the probation

officer had erroneously recommended the corresponding six-level

enhancement to his offense level. At sentencing, the district

court heard testimony on the issue, made a credibility

determination against Shull, and found that the enhancement was

correct. 

The court sentenced Shull to 293 months for the Tennessee

robbery and 240 months on each of the North Carolina robberies.

The sentences run concurrently. Shull timely appealed, raising

only one issue: that his sentence violates the Sixth Amendment

under United States v. Booker, 543 U.S. 220 (2005). 

After Shull filed his brief, the United States and Shull

filed a Joint Motion to Remand for Resentencing. The parties

concur that the sentence violates the Sixth Amendment under Booker

and ask that the sentence be vacated and the matter remanded for

resentencing.

“To establish that a Sixth Amendment error occurred in

his sentencing, [Shull] must show that the district court imposed

a sentence exceeding the maximum allowed based only on the facts

that he admitted.” See United States v. Evans, 416 F.3d 298, 300

(4th Cir. 2005). Based only on the facts that Shull admitted, his

offense level would have been 30. With a criminal history category
*Just as we noted in Hughes, “[w]e offer no criticism of the

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

at the time of sentencing.” Hughes, 401 F.3d at 545 n.4. 

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of VI, his guideline range would have been 168-210 months. Shull’s

sentence of 293 months exceeds the maximum authorized by the facts

he admitted. This Sixth Amendment error requires resentencing. 

We accordingly grant the motion to remand, vacate the

sentence, and remand for resentencing. On remand, the district

court should first determine the appropriate sentencing range under

the guidelines, making all factual findings appropriate for that

determination. United States v. Hughes, 401 F.3d 540, 546 (4th

Cir. 2005). The court should consider this sentencing range along

with the other factors described in 18 U.S.C.A. § 3553(a) (West

2000 & Supp. 2005), and then impose a sentence. Id. If that

sentence falls outside the guideline range, the court should

explain its reasons for the departure as required by 18 U.S.C.A.

§ 3553(c)(2). Id. The sentence must be “within the statutorily

prescribed range and . . . reasonable.” Hughes, 401 F.3d at 546.*

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.

VACATED AND REMANDED