UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 03-4204

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

FRANTZ MICHEL, a/k/a Freon, a/k/a John Doe,

Defendant - Appellant.

On Remand from the Supreme Court of the United States.

(S. Ct. No. 03-10755)

Submitted: February 28, 2006 Decided: May 4, 2006

Before WIDENER, WILLIAMS, and MOTZ, Circuit Judges.

Affirmed in part, vacated in part, and remanded by unpublished per

curiam opinion.

Michael Morchower, MORCHOWER, LUXTON & WHALEY, Richmond, Virginia,

for Appellant. Paul J. McNulty, United States Attorney, Michael J.

Elston, Assistant United States Attorney, Alexandria, Virginia, for

Appellee.

Unpublished opinions are not binding precedent in this circuit.

See Local Rule 36(c).
- 2 -

PER CURIAM:

This case is before us on remand from the United States

Supreme Court for further consideration in light of United

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

No. 03-4204, 88 F. App’x 623 (4th Cir. 2004) (unpublished),

vacated, 543 U.S. 1099 (2005), we affirmed Michel’s conviction and

life sentence imposed by the district court after a jury convicted

Michel of conspiracy to possess with intent to distribute a

quantity of heroin, a quantity of cocaine, and more than fifty

grams of cocaine base “crack” in violation of 21 U.S.C. § 846

(2000). On January 24, 2005, the Supreme Court granted Michel’s

petition for certiorari, vacated our judgment, and remanded in

light of Booker. On remand, Michel alleges he should be

resentenced in light of Booker and makes several arguments

regarding the propriety of his conviction. After reviewing

Michel’s appeal in light of Booker, we affirm his conviction but

vacate his sentence and remand for resentencing.

Michel contends that his sentence violates the Sixth

Amendment because the district court at sentencing held him

accountable for additional drug amounts, a leadership role in the

offense, and possession of a gun based on findings not found by the

jury or admitted by him. Because Michel did not raise a Sixth
1

The Government asserts that Michel waived appellate review of

his Sixth Amendment challenge to his sentence by failing to raise

it in his initial brief before this court. Although the Government

correctly states the general rule, see United States v. Al-Hamdi,

356 F.3d 564, 571 n.8 (4th Cir. 2004) (“It is a well settled rule

that contentions not raised in the argument section of the opening

brief are abandoned.”), we decline to enforce it in light of our

order directing the parties to file supplemental briefs addressing

Booker. See United States v. Washington, 398 F.3d 306, 312 n.7

(4th Cir.) (stating that “[a]lthough appellate contentions not

raised in an opening brief are normally deemed to have been waived

. . . the Booker principles apply in this proceeding because the

[Supreme] Court specifically mandated that we must apply [Booker]

. . . to all cases on direct review.”) (internal quotation marks

and citations omitted), cert. denied, 125 S. Ct. 2558 (2005);

United States v. James, 337 F.3d 387, 389 n.1 (4th Cir. 2003)

(“Because the court requested the additional briefing, this case is

not governed by our rule that arguments not raised in the

appellant’s opening brief are typically deemed abandoned on

appeal.”), cert. denied, 540 U.S. 1134 (2004).

- 3 -

Amendment issue in the district court, we review for plain error.1

See United States v. Hughes, 401 F.3d 540, 547 (4th Cir. 2005). To

demonstrate plain error, Michel must establish that error occurred,

that it was plain, and that it affected his substantial rights.

Id. at 547-48. If a defendant satisfies these requirements, our

“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.”

Id. at 555 (internal quotation marks and citation omitted).

In Booker, the Supreme Court held that the mandatory

manner in which the Sentencing Guidelines required courts to impose

sentencing enhancements based on facts found by the court by a
- 4 -

preponderance of the evidence violated the Sixth Amendment. 125 S.

Ct. at 746, 750 (Stevens, J., opinion of the Court). The Court

remedied the constitutional violation by making the Guidelines

advisory through the removal of two statutory provisions that had

rendered them mandatory. Id. at 746 (Stevens, J., opinion of the

Court); id. at 756-67 (Breyer, J., opinion of the Court).

Here, the district court sentenced Michel under the

mandatory Federal Sentencing Guidelines by determining drug

quantities in excess of that listed in the indictment, under U.S.

Sentencing Guidelines Manuel § 2D1.1(c)(1) (2002), increased his

base offense level by four for his leadership role under USSG

§ 3B1.1(a), because he was an organizer of the criminal activity,

and increased his offense level by two for possession of a firearm

under USSG § 2D1.1(b)(1). These findings yielded a Sentencing

Guideline range of life. Using only the amount of drugs found by

the jury (fifty grams of crack cocaine), see USSG § 2D1.1(c)(4),

and without the enhancements for being an organizer and possessing

a firearm, Michel’s total offense level would have been 32, which,

with his criminal history category of I, would have provided a

sentencing range of 121-151 months of imprisonment. In light of

Booker and Hughes, we find that the district court’s plain error in
2

Just as we noted in Hughes, “[w]e of course offer no

criticism of the district court judge, who followed the law and

procedure in effect at the time” of Michel’s sentencing. Hughes,

401 F.3d at 545 n.4. 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”).

3Although the 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

(Breyer, J., opinion of the Court). On remand, the district court

should first determine the appropriate sentencing range under the

Guidelines, making all factual findings appropriate for that

determination. Hughes, 401 F.3d at 546. 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. 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. at 547.

4See Al-Hamdi, 356 F.3d at 571 n.8 (noting that “[i]t is a

well settled rule that contentions not raised in the argument

section of the opening brief are abandoned.”)

- 5 -

sentencing Michel based on facts found by the court affects his

substantial rights and warrants correction.2

Accordingly, we vacate Michel’s sentence and remand for

resentencing.3 We also affirm Michel’s conviction for the reasons

in our prior opinion.4 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