United States of America v. Stern, No. 02-4091 4th Cir. Apr. 23, 2004 unpublished . Stern filed a

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 02-4091
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
PETER KAY STERN, a/k/a Peter K. Stern,
Defendant - Appellant.
On Remand from the United States Supreme Court.
(S. Ct. No. 04-75)
Submitted: October 31, 2005 Decided: January 6, 2006
Before NIEMEYER and SHEDD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed in part; vacated and remanded in part by unpublished per
curiam opinion.
John Kenneth Zwerling, ZWERLING, LEIBIG & MOSELEY, P.C.,
Alexandria, Virginia, for Appellant. Gretchen C. F. Shappert,
United States Attorney, David A. Brown, Assistant United States
Attorney, Charlotte, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).

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PER CURIAM:
Peter Kay Stern was convicted following a jury trial of
one count of conspiracy to submit false and fraudulent claims to
the Internal Revenue Service (“IRS”), one count of obstructing the
work of IRS agents, one count of bank fraud, two counts of
threatening a federal judge, and two counts of using the United
States Postal Service mail system to communicate threats to a
federal judge. The district court sentenced Stern to a 151-month
term of imprisonment, followed by three years of supervised
release. We affirmed his convictions and sentence. United
States v. Stern, No. 02-4091 (4th Cir. Apr. 23, 2004)
(unpublished). Stern filed a petition for writ of certiorari in
the Supreme Court. On January 24, 2005, the Supreme Court granted
the petition, vacated this court’s judgment, and remanded for
further consideration in light of United States v. Booker, 125
S. Ct. 738 (2005). Stern v. United States, 125 S. Ct. 988 (2005).
For the reasons discussed below, we affirm Stern’s convictions,
vacate the sentence, and remand to the district court for
resentencing consistent with Booker.
Stern contends on remand that, in light of the Supreme
Court’s decision in Booker, his sentence violates the Sixth
Amendment because the district court enhanced his sentence based on
facts not admitted by him or proven to a jury beyond a reasonable
doubt. In Booker, the Supreme Court held that the mandatory manner

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in which the federal sentencing guidelines required courts to
impose sentencing enhancements based on facts found by the court,
by a 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 severing two
statutory provisions, 18 U.S.C.A. § 3553(b)(1) (West Supp. 2005)
(requiring sentencing courts to impose a sentence within the
applicable guideline range), and 18 U.S.C.A. § 3742(e) (West 2000
& Supp. 2005) (setting forth appellate standards of review for
guideline issues), thereby making the guidelines advisory. Id. at
756-57 (Breyer, J., opinion of the Court).
Here, the district court sentenced Stern under the
mandatory federal sentencing guidelines based on facts that were
neither admitted by him nor proved to a jury beyond a reasonable
doubt. Based on our review of the record, we find that all but
four of Stern’s enhancements were imposed in violation of the Sixth
Amendment. We find that the twelve-level enhancement in Group 1,
imposed pursuant to U.S. Sentencing Guidelines Manual (“USSG”)
§ 2F1.1(b)(1)(M) (1995) because the intended loss exceeded
$1,500,000, and the two-level enhancement for multiple victims
pursuant to USSG § 2F1.1(b)(2) were not improper enhancements under
Booker because Stern admitted that the face value of the
“comptroller warrants” exceeded this amount and that there were
multiple victims. Additionally, the three-level enhancements to

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*Just as we noted in United States v. Hughes, 401 F.3d 540,
545 n.4 (4th Cir. 2005), “[w]e of course offer no criticism of the
district judge, who followed the law and procedure in effect at the
time” of Stern’s sentencing.
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Groups 3 and 4, which were imposed pursuant to USSG § 3A1.2(a)
because the victims were federal judges and the offense was
motivated by their status, were also not improper. The facts
supporting these two enhancements were clearly set forth in the
indictment as elements of the offense and found by the jury beyond
a reasonable doubt.
We find that the remaining sentencing enhancements,
however, were not admitted by Stern nor proved to a jury beyond a
reasonable doubt. Considering only the four enhancements that were
not imposed in violation of Booker, we find that Stern should have
received offense levels of 20 for Group 1, 12 for Group 2, 15 for
Group 3, and 15 for Group 4. Pursuant to USSG § 3D1.4, Stern’s
combined offense level would have been 23. With a criminal history
category of I, Stern’s guideline range would have been 46 to 57
months of imprisonment. USSG Ch. 5, Pt. A (Sentencing Table). The
151-month sentence Stern received is substantially longer than the
46 to 57 month term of imprisonment the district court could have
imposed based solely on the facts found by the jury.
Thus, under Booker, we find that Stern’s sentence
violates the Sixth Amendment, and also note that the district court
erred in treating the guidelines as mandatory. * Because Stern

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clearly maintained in both the district court and this court that
his enhancements should have been proved beyond a reasonable doubt
pursuant to Apprendi v. New Jersey, 530 U.S. 466 (2000), we find
that the issue has been preserved for appeal and does not require
plain error review.
Accordingly, we vacate Stern’s sentence and remand the
case for resentencing in light of Booker. 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. On remand, the
district court should first determine the appropriate sentencing
range under the guidelines, making all factual findings appropriate
for that determination. See Hughes, 401 F.3d at 546 (applying
Booker on plain error review). The court should consider this
sentencing range along with the other factors described in § 3553,
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 § 3553(c)(2). Id. The sentence must be
“within the statutorily prescribed range and . . . reasonable.”
Id. at 546-47.
Because the Supreme Court’s remand order does not affect
this court’s conclusion in our prior opinion that the evidence is
sufficient to support Stern’s convictions for Counts 2 and 3, we
also affirm Stern’s convictions for the reasons set forth in the

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prior opinion. We deny Stern’s pending motion to reassign his
sentencing upon remand. 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 AND REMANDED IN PART

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