UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 04-4480

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

CLYDE ALLEN NEWILL,

Defendant - Appellant.

Appeal from the United States District Court for the Western

District of Virginia, at Harrisonburg. James C. Turk, Senior

District Judge. (CR-03-97)

Submitted: February 7, 2005 Decided: March 1, 2005

Before NIEMEYER, TRAXLER, and DUNCAN, Circuit Judges.

Affirmed in part, vacated in part, and remanded with instructions

by unpublished per curiam opinion.

W. Barry Montgomery, KALBAUGH, PFUND & MESSERSMITH, Richmond,

Virginia, for Appellant. John L. Brownlee, United States Attorney,

Joseph W. H. Mott, Assistant United States Attorney, Yolanda

Hibbler, Third Year Law Intern, Roanoke, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

See Local Rule 36(c).
- 2 -

PER CURIAM:

Clyde Allen Newill was found guilty by a jury of

conspiracy to distribute less than 500 grams of cocaine in

violation of 21 U.S.C. § 846 (2000), and three counts of

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

(b)(1)(C) (2000). On appeal, Newill contends the district court

erred at sentencing by increasing his base offense level above the

base offense level warranted by the facts found by the jury beyond

a reasonable doubt. We find the imposition of the sentence was not

consistent with the rules announced in United States v. Booker, 125

S. Ct. 738, 2005 WL 50108 (2005). Accordingly, while we affirm the

convictions, we vacate the sentence and remand with instructions

for resentencing.

A jury found Newill was responsible for less than 500

grams of cocaine. At sentencing, Newill’s offense level was based

in part upon trial testimony showing that Newill may have

distributed in excess of 500 grams of cocaine and 3.5 grams of

methamphetamine. Newill’s offense level was arrived at by

combining the two drugs by using the Drug Equivalency Tables.

Accordingly, Newill’s offense level was higher than if the quantity

of cocaine found by the jury was the only drug considered. Newill

challenged at sentencing the drug quantity by arguing he was being

sentenced based upon drugs not found by the jury beyond a

reasonable doubt.
- 3 -

We find Newill’s sentence is in violation of the rule

announced in United States v. Booker, 125 S. Ct. 738, 2005 WL 50108

(2005). Booker held that the “Sixth Amendment is violated when a

district court, acting pursuant to the Sentencing Reform Act and

the guidelines, imposes a sentence greater than the maximum

authorized by the facts found by the jury alone.” United States v.

Hughes, __ F.3d __, 2005 WL 147059, *3 (4th Cir. Jan. 24, 2005).

In Booker, the Supreme Court severed and excised two provisions of

the Sentencing Reform Act: 18 U.S.C. § 3553(b)(1), requiring

sentencing courts to impose a sentence within the guideline range,

and 18 U.S.C. § 3742(e), setting forth standards of review on

appeal. The Supreme Court held that the remainder of the

guidelines remain as advisory, requiring a sentencing court to

consider applicable guidelines ranges, but allowing the court to

“tailor the sentence in light of other statutory concerns . . . .”

Booker, 2005 WL 50108, at *38. 

In Hughes, we found Hughes’ sentence exceeded the maximum

sentence authorized by the facts found by the jury alone, in

violation of Booker. We vacated the sentence and remanded with

instructions for resentencing. 

While we affirm Newill’s convictions, we vacate the

sentence and remand with instructions for resentencing consistent
*We have reviewed the district court’s findings with respect

to drug quantity and find it supported by a preponderance of the

evidence. United States v. Vinson, 886 F.2d 740, 741-42 (4th Cir.

1989). 

- 4 -

with the rules announced in Booker and Hughes.* 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 WITH INSTRUCTIONS