UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 04-4362

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

CHARLES G. CANADY,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern

District of North Carolina, at Wilmington. James C. Fox, Senior

District Judge. (CR-02-127)

Submitted: April 27, 2005 Decided: July 13, 2005

Before WILKINSON, NIEMEYER, and MOTZ, Circuit Judges.

Affirmed in part, vacated in part, and remanded by unpublished per

curiam opinion.

R. Clarke Speaks, Wilmington, North Carolina, for Appellant. Frank

D. Whitney, United States Attorney, Anne M. Hayes, Christine

Witcover Dean, Assistant United States Attorneys, Raleigh, North

Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

See Local Rule 36(c).
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PER CURIAM:

Charles G. Canady appeals from his conviction and

sentence for conspiracy with intent to distribute fifty grams or

more of cocaine base and carrying a firearm during a drug

trafficking conspiracy, in violation of 21 U.S.C. § 846 (2000) and

18 U.S.C. § 924(c) (2000). We affirm Canady’s conviction, but we

remand for resentencing in light of United States v. Booker, 125 S.

Ct. 738 (2005), and United States v. Hughes, 401 F.3d 540 (4th Cir.

2005).

Canady claims the district court erred when it denied his

motion for a judgment of acquittal. This court reviews the

district court’s decision to deny a motion for judgment of

acquittal de novo. United States v. Gallimore, 247 F.3d 134, 136

(4th Cir. 2001). Canady is mistaken that his acquittal of a drug

possession charge merits dismissal of the gun possession charge

because the gun possession charge related to the drug conspiracy

charge for which he was convicted and not to the drug possession

charge for which he was acquitted. Moreover, the jury had

sufficient evidence to conclude that the gun, which was positioned

next to the drug proceeds in Canady’s car, facilitated the safe

transport of those proceeds. Accordingly, the district court did

not err in denying Canady’s motion for a judgment of acquittal.

Canady argues that the district court erred in denying

his request for a downward adjustment for his mitigating role in
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the offense. The district court’s determination of the defendant’s

role in the offense is a factual issue reviewed for clear error.

United States v. Perkins, 108 F.3d 512, 518 (4th Cir. 1997).

Safely storing the money was not a minor part of the drug

trafficking conspiracy, and Canady’s role, while not complicated,

was nevertheless integral and material. Canady has failed to

provide any evidence that the district court clearly erred in its

decision.

Canady argued in a supplemental brief that the district

court violated the Confrontation Clause of the Sixth Amendment by

admitting statements his co-conspirator James Ardell Canady

(“Ardell”) made to a confidential informant that Canady was a part

of the drug trafficking conspiracy. Canady contends that the

statements were inadmissible under Crawford v. Washington, 541 U.S.

36 (2004), because Ardell’s statements were “testimonial” in

nature. In Crawford the Supreme Court announced that the

Confrontation Clause prohibits the admission of testimonial

statements that are not subject to cross-examination. Id. at 50-

52. While Crawford did not provide a comprehensive definition of

what constitute “testimonial statements,” the broadest

interpretation argued by the parties in Crawford would define

testimonial statements as “made under circumstances which would

lead an objective witness reasonably to believe that the

statement[s] would be available for use at a later trial.” Id. at
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52. Crawford referenced Bourjaily v. United States, 483 U.S. 171

(1987), as an example of a case in which nontestimonial statements

were correctly admitted against the defendant despite the lack of

prior opportunity for cross-examination. Crawford, 541 U.S. at 58.

In Bourjaily, the Court rejected a Confrontation Clause objection

to the admission of a conversation between a co-defendant and a

confidential informant. Bourjaily, 483 U.S. at 181-84 (holding

that statements admissible under Rule 801(d)(2)(E) did not violate

the Confrontation Clause). The statements at issue here were not

testimonial, even under the broadest interpretation of that term,

as Ardell clearly did not realize that his statements to the

informant were going to be used against him at trial. The district

court did not abuse its discretion by admitting the statements by

Ardell.

Finally, Canady claims that the district court improperly

sentenced him when it imposed a sentence greater than the maximum

authorized by the facts found by the jury alone. Because Canady

failed to raise this claim below, we must review it for plain

error. Hughes, 401 F.3d at 547. The jury convicted Canady of

conspiracy to distribute more than fifty grams of cocaine base. At

sentencing, the district court found Canady responsible for 79.8

kilograms of cocaine base. Given Canady’s criminal history

category of II, the facts found by the jury on the drug conspiracy

charge authorized an offense level of thirty-two, with a resulting
1

The presentence report recommended a criminal history

category of III, and the district court stated at sentencing that

it was using category III. (J.A. 573). However, as the Government

points out in its brief, the sentencing range stated by the

district court is that associated with category II. Earlier in the

sentencing hearing, the court ruled in Canady’s favor on an

objection to the criminal history category, reducing his category

from III to II. (J.A. 562-63, 569). Thus, the later statement

that Canady’s criminal history category was III is either a

typographical error in the transcript or a misstatement by the

district court.

2The consecutive sixty month sentence for the firearms charge

is not at issue.

3Just 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 Canady’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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sentencing range of 135-168 months, while the range associated with

the judicially enhanced offense level of thirty-eight was 262-327

months.1

 After a downward departure for substantial assistance,

Canady was sentenced to 182 months on this count.2 The district

court erred in basing Canady’s sentence on judge-found facts under

a mandatory guidelines regime, and the error was plain. Id. at

547-48. Because Canady’s sentence was longer than what could have

been imposed based on the jury’s verdict, the error affected

Canady’s substantial rights, id. at 548, and we will notice the

error, id. at 555. Therefore, Canady must be resentenced.3 

Although the sentencing guidelines are no longer

mandatory, Booker makes clear that a sentencing court must still
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“consult [the] Guidelines and take them into account when

sentencing.” 125 S. Ct. at 767. On remand, the district court

should first determine the appropriate sentencing range under the

guidelines, making all the factual findings appropriate for that

determination. See Hughes, 401 F.3d at 546. The court should

consider this sentencing range along with the other factors

described in 18 U.S.C. § 3553(a)(2000), and then impose a sentence.

Id. If that sentence falls outside the Guidelines range, the court

should explain its reasons for the departure as required by 18

U.S.C. § 3553(c)(2) (2000). Id. The sentence must be “within the

statutorily prescribed range and . . . reasonable.” Id. at 546-47.

We affirm Canady’s conviction. In light of Booker and

Hughes, we vacate Canady’s sentence and remand for resentencing.

The facts and legal contentions are adequately presented in the

materials before the court and oral argument would not aid the

decisional process.

AFFIRMED IN PART, VACATED

IN PART, AND REMANDED