United States of America v. Booker, 125 S. Ct. 738 2005 , and United States v. Hughes, 401 F.3d 540 4th Cir. 2005

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 03-4494
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JAMES BROWN, a/k/a 6-9,
Defendant - Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Charleston. Charles H. Haden II,
District Judge. (CR-02-189)
Submitted: April 15, 2005 Decided: May 31, 2005
Before WIDENER, MICHAEL, and TRAXLER, Circuit Judges.
Affirmed in part; vacated and remanded in part by unpublished per
curiam opinion.
Barron M. Helgoe, VICTOR, VICTOR & HELGOE, L.L.P., Charleston, West
Virginia, for Appellant. Kasey Warner, United States Attorney,
Ronald G. Morgan, Assistant United States Attorney, Charleston,
West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).

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PER CURIAM:
James Brown pled guilty to one count of possession with
intent to distribute cocaine base, in violation of 21 U.S.C.
§ 841(a)(1) (2000), and one count of simple assault on a federal
officer, in violation of 18 U.S.C. § 111(a)(1) (2000). He appeals
his sentence. We affirm Brown’s conviction, vacate his sentence,
and remand for further sentencing proceedings in light of United
States v. Booker, 125 S. Ct. 738 (2005), and United States v.
Hughes, 401 F.3d 540 (4th Cir. 2005).
On appeal, Brown contends that the district court erred
in including in the quantity of drugs attributed to him drugs
mentioned in non-immunized, post arrest statements that he made to
state law enforcement officers prior to the date of filing of the
federal charges of which he was convicted. He argues that U.S.
Sentencing Guidelines Manual § 1B1.8 (2003), mandates that the drug
quantities he disclosed to the state law enforcement officers
should have been excluded from his relevant conduct because his
disclosures were made pursuant to a plea agreement.
Brown has also filed supplemental briefs in which he
asserts error in his sentence based upon the United States Supreme
Court’s opinions in Blakely v. Washington, 124 S. Ct. 2351 (2004),
and United States v. Booker. Specifically, he asserts error in the
judicial fact-finding employed by the district court judge in
adding relevant conduct of 524.1375 grams of self-disclosed cocaine

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base weight onto the convicted amount of cocaine base, which was
only .12 grams, which had the effect of increasing his sentencing
range under the Guidelines from fifteen to twenty-one months to
235-240 months’ imprisonment. He further asserts error in the
district court’s enhancement of his base offense level on the
assault charge from six to nine, with an attendant increase in
Guidelines range from two to eight months to eight to fourteen
months’ imprisonment. The United States has filed a supplemental
brief in which it states that it does not oppose Brown’s
resentencing. We review factual findings made by the district
court for clear error, while legal interpretations of the
Guidelines are reviewed de novo. See United States v. Blake, 81
F.3d 498, 503 (4th Cir. 1996); United States v. Daughtrey, 874 F.2d
213, 217 (4th Cir. 1989).
It is clear that the district court sentenced Brown based
on the then-existing law under which application of the Guidelines
was mandatory. In light of the Supreme Court’s decision in Booker
and this court’s decision in Hughes, we find that the mandatory
application of the Guidelines in this case was plainly erroneous.
Hughes, 401 F.3d at 547-48.
Accordingly, we affirm Brown’s conviction, vacate his
sentence, and remand for further sentencing proceedings in light of
the standards articulated in Booker and Hughes. We dispense with
oral argument because the facts and legal contentions are

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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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