UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 03-4964

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

BOBBY GILLIAN,

Defendant - Appellant.

On Remand from the United States Supreme Court.

(S. Ct. No. 04-6186)

Submitted: October 7, 2005 Decided: December 14, 2005

Before WIDENER, MICHAEL, and KING, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Mary Lou Newberger, Federal Public Defender, David R. Bungard,

Assistant Federal Public Defender, Charleston, West Virginia, for

Appellant. Kasey Warner, United States Attorney, John L. File,

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Unpublished opinions are not binding precedent in this circuit.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

Bobby Gillian pled guilty to one count of possession with

intent to distribute a quantity of cocaine, in violation of 21

U.S.C. § 841(a)(1) (2000) and one count of being a felon in

possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and

924(a)(2) (2000). He was sentenced to 188 months in prison for the

drug charge and 120 months in prison for the firearm charge, to be

served concurrently. We affirmed his conviction and sentence. See

United States v. Gillian, No. 03-4964, 99 Fed. App. 477 (4th Cir.

June 2, 2004) (unpublished). The Supreme Court granted Gillian’s

petition for writ of certiorari, vacated this court’s judgment, and

remanded for further proceedings in light of United States v.

Booker, 125 S. Ct. 738 (2005).

Gillian’s sentence was imposed prior to the decisions in

Booker and Blakely v. Washington, 542 U.S. 296 (2004). Gillian did

not raise objections to his sentence based on the mandatory nature

of the sentencing guidelines or the district court’s application of

sentencing enhancements based on facts not admitted by Gillian or

found by a jury beyond a reasonable doubt. Therefore, we review

his sentence for plain error. See United States v. Hughes, 401

F.3d 540, 547 (4th Cir. 2005). 

Consequently, Gillian must show: (1) an error occurred;

(2) the error was plain; (3) the error affected his substantial

rights; and (4) the error calls into question the fairness,
*Just as we noted in Hughes, 401 F.3d at 545 n.4, “[w]e of

course offer no criticism of the district judge, who followed the

law and procedure in effect at the time” of Gillian’s 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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integrity, or public reputation of judicial proceedings. See

United States v. Olano, 507 U.S. 725, 732 (1993). If the three

elements of the plain error standard are met, the court may

exercise its discretion to notice error only if the error seriously

affects “the fairness, integrity, or public reputation of judicial

proceedings.” Id. at 736 (citation omitted). 

We conclude that the district court erred because the

drug quantity attributed to Gillian at sentencing was based on

certain facts found by the court rather than admitted by Gillian.*

Hughes, 401 F.3d at 546-47. That error was plain because Booker

abrogated the previous law of this circuit. Id. at 547-48. To

affect Gillian’s substantial rights, however, the sentence imposed

must have been longer than what could have been imposed based on

the guilty plea. Id. at 548.

Gillian’s guilty plea, without any specification as to

the drug quantity, subjected Gillian to an offense level of thirtytwo pursuant to his status as a career offender. See USSG

§ 4B1.1(b)(C). Based on a total offense level of thirty-two and a

criminal history category of VI, Gillian’s unenhanced sentencing

guidelines range was 210 to 262 months’ imprisonment. See USSG,
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Sentencing Table; see also United States v. Evans, 416 F.3d 298,

300 n.4 (4th Cir. 2005) (requiring that in determining the correct

guideline range, the offense level to be used is the base level

determined by admitted conduct or facts found by the jury “before

adjusting that range for acceptance of responsibility”). Because

Gillian’s 188-month sentence does not exceed the maximum of this

range, there was no Sixth Amendment violation. See Evans, 416 F.3d

at 300-01 (holding that if sentence does not exceed maximum

authorized by facts admitted by defendant or found by jury, there

is no Sixth Amendment violation).

Accordingly, we affirm Gillian’s sentence after our

reconsideration in light of Booker. 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