United States of America v. Richard Montague Powell

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4064
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
RICHARD MONTAGUE POWELL,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Charleston. David C. Norton, District Judge.
(CR-04-434)
Submitted: June 24, 2005 Decided: July 19, 2005
Before WILLIAMS, MICHAEL, and DUNCAN, Circuit Judges.
Affirmed in part, vacated in part, and remanded by unpublished per
curiam opinion.
Grover C. Seaton IV, Moncks Corner, South Carolina, for Appellant.
Jonathan S. Gasser, Acting United States Attorney, Miller W.
Shealy, Jr., Assistant United States Attorney, Charleston, South
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).

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PER CURIAM:
Richard Montague Powell pled guilty to copyright
infringement in violation of 17 U.S.C. § 506(a)(1) (2000), 18
U.S.C. § 2319(b)(1) (2000). Powell was sentenced to 30 months of
imprisonment, followed by two years of supervised release. He
appeals his sentence.
Powell first argues on appeal that the district court
erred in applying the fraud enhancement to his base offense level,
pursuant to U.S. Sentencing Guidelines Manual §§ 2B5.3(b),
2B1.1(b)(1)(G) (2003), because the copyright holder suffered no
pecuniary harm and thus there was no loss. However, the
determination of whether the enhancement from the fraud guideline
applies to enhance the base offense level for copyright
infringement is based on retail value of the infringement, not the
copyright holder’s pecuniary loss. USSG § 2B5.3(b), comment.
(n.2(B)) (“the infringement amount is the retail value of the
infringing item, multiplied by the number of items”). Because
Powell pled guilty to the indictment, which included the averment
that the retail value of the infringement was in excess of
$250,000, and further agreed at sentencing that the value of the
infringement was greater than $200,000, we find the district court
did not err in applying the enhancement pursuant to USSG
§ 2B1.1(b)(1)(G).

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Powell also argues the district court erred in applying
the federal sentencing guidelines as mandatory in violation of
United States v. Booker, 125 S. Ct. 738 (2005). Because Powell
did not object to his sentence in the district court on this
ground, our review is for plain error. See United States v.
Hughes, 401 F.3d 540, 547 (4th Cir. 2005). To demonstrate plain
error, Powell must establish that error occurred, that it was
plain, and that it affected his substantial rights. Id. at 547-48.
If a defendant establishes these requirements, the court’s
“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 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. The Court remedied the constitutional
violation by severing two statutory provisions, 18 U.S.C.A.
§§ 3553(b)(1), 3742(e) (West 2000 & Supp. 2005), thereby making the
guidelines advisory. Hughes, 401 F.3d at 546.
In United States v. White, 405 F.3d 208 (4th Cir. 2005),
we recognized that a sentence that does not violate the Sixth

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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 Powell’s sentencing.
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Amendment may involve cognizable plain error when it appears the
district court would have imposed a lesser sentence if it had
treated the guidelines as advisory. Here, although the court’s
comments at sentencing are not conclusive, they can be interpreted
to permit the possibility that a lower sentence might have been
imposed on Powell had the court not been under the now-erroneous
understanding that application of the guidelines was mandatory.*
Out of deference to the district court, then, we vacate Powell’s
sentence and remand the case for resentencing consistent with
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 United States v. Hughes, 401 F.3d 540, 546 (4th
Cir. 2005) (applying Booker on plain error review). 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

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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.
Accordingly, we affirm the conviction, but vacate
Powell’s sentence and remand for resentencing in accordance with
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 IN PART,
VACATED IN PART, AND REMANDED

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