UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 05-4282

UNITED STATES OF AMERICA,

Plaintiff - Appellant,

versus

STEVEN TODD ASHWORTH,

Defendant - Appellee.

Appeal from the United States District Court for the Southern

District of West Virginia, at Charleston. David A. Faber, Chief

District Judge. (CR-03-278)

Submitted: June 30, 2005 Decided: July 19, 2005

Before LUTTIG, MOTZ, and SHEDD, Circuit Judges.

Vacated and remanded by unpublished per curiam opinion.

Stephen M. Horn, Acting United States Attorney, R. Gregory McVey,

Assistant United States Attorney, Huntington, West Virginia, for

Appellant. Donald L. Stennett, BREWSTER, MORHOUS, CAMERON, CARUTH

MOORE, KERSEY & STAFFORD, P.L.L.C., Charleston, West Virginia, for

Appellee.

Unpublished opinions are not binding precedent in this circuit.

See Local Rule 36(c).
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PER CURIAM:

Steven Todd Ashworth was convicted by a jury of

distribution of a quantity of methamphetamine in violation of 21

U.S.C. § 841(a) (2000), and 18 U.S.C. § 2 (2000) (Count Two of a

two-count indictment), but acquitted of conspiring with several

others to manufacture and distribute methamphetamine (Count One).

The district court sentenced Ashworth to sixteen months

imprisonment. The government has appealed the sentence, contending

that the district court erred when it determined that it was barred

from considering acquitted conduct to calculate the guideline range

by United States v. Booker, 125 S. Ct. 738 (2005), and United

States v. Hughes, 401 F.3d 540 (4th Cir. 2005). We agree that the

court erred in this respect; accordingly, we vacate the sentence

and remand for resentencing.

Based on the evidence produced at trial, the probation

officer recommended that Ashworth was responsible for 567 grams of

methamphetamine. The probation officer recommended a base offense

level of 32 (500 grams to 1.5 kilograms of methamphetamine), U.S.

Sentencing Guidelines Manual § 2D1.1(c)(4) (2004), with a two-level

increase for possession of a firearm, USSG § 2D1.1(b)(1). Ashworth

was in criminal history category I, which gave him a guideline

range of 151-188 months.

Ashworth objected to the entire guideline calculation

based on the Supreme Court’s decision in Booker. At the sentencing
*

United States v. Fanfan, 125 S. Ct. 738 (2005).

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hearing on January 31, 2005, Ashworth’s lawyer argued that, under

Booker, the district court should not consider as relevant conduct

for sentencing purposes “the conduct for which [Ashworth] was

acquitted,” that is, the conspiracy. The district court determined

that, under Booker and Fanfan* and this court’s decision in Hughes,

it was constrained to calculate the guideline range based only on

the one count of methamphetamine distribution of which Ashworth had

been convicted and to disregard all other conduct that was part of

the conspiracy. The court’s determination reduced the offense

level from 34 to 12. Because Ashworth was in criminal history

category I, the guideline range decreased from 151-188 to 10-16

months. The court imposed a sentence of sixteen months

imprisonment. 

On appeal, the government argues that Booker does not

preclude the sentencing court from considering acquitted conduct in

determining the guideline range. In Booker, the Supreme Court held

that its decision in Blakely v. Washington, 124 S. Ct. 2531 (2004),

applies to the federal sentencing guidelines and that the mandatory

guidelines scheme which provided for sentence enhancements based on

facts found by the court 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
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appellate review under the guidelines, thus making the guidelines

advisory. Id. at 756-57 (Breyer, J., opinion of the Court). 

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. To impose a sentence consistent

with Booker, “a district court shall first calculate (after making

the appropriate findings of fact) the range prescribed by the

guidelines.” Hughes, 401 F.3d at 546 (emphasis added). The court

must consider the guideline range along with the other relevant

factors in the guidelines and those set out in 18 U.S.C.A.

§ 3553(a) (West 2000 & Supp. 2005), and then impose a sentence.

Hughes, 401 F.3d at 546. If that sentence falls outside the

guidelines range, the court should explain its reasons for the

departure as required by 18 U.S.C.A. § 3553(c)(2) (West 2000 &

Supp. 2005). Hughes, 401 F.3d at 546. The sentence must be

“within the statutorily prescribed range and . . . reasonable.”

Id.

Under the pre-Booker guidelines, the district court was

entitled to consider acquitted conduct as relevant conduct. United

States v. Watts, 519 U.S. 148, 157 (1997). After Booker, applying

the guidelines as advisory, the district court may continue to

consider acquitted conduct in determining the guideline range “as

long as [the court’s consideration of acquitted conduct] does not
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support any mandatory calculation,” or “violate any of the judge’s

obligations to consider relevant factors.” United States v.

Williams, 399 F.3d 450, 454 (2d Cir. 2005); see also United

States v. Duncan, 400 F.3d 1297, 1304-05 (11th Cir. 2005) (“Booker

does not suggest that the consideration of acquitted conduct

violates the Sixth Amendment as long as the judge does not impose

a sentence that exceeds what is authorized by the jury

verdict. . . . [and instead] suggests that the sentencing judges

can consider relevant acquitted conduct when applying the

Guidelines in an advisory manner, ‘[f]or when a trial judge

exercises his discretion to select a specific sentence within a

defined range, the defendant has no right to a jury determination

of the facts that the judge deems relevant.’ Booker, 125 S. Ct. at

750.”).

Here, because the jury acquitted Ashworth on the

conspiracy count, the district court mistakenly believed that it

was required to exclude the evidence of Ashworth’s participation in

the conspiracy from its calculation of the offense level. The

district court must consider the correct guideline range before

imposing sentence under the post-Booker sentencing scheme. Hughes,

401 F.3d at 546, 556. 

We therefore vacate the sentence and remand for

resentencing. On remand, the district court should determine by a

preponderance of the evidence whether Ashworth conspired to
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manufacture and distribute methamphetamine and, if so, the court

should recalculate the base offense level accordingly. 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