United States of America v. Thomas Junior Bell

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4506
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
THOMAS JUNIOR BELL,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Louise W. Flanagan,
District Judge. (CR-04-41)
Submitted: August 12, 2005 Decided: September 14, 2005
Before NIEMEYER, MICHAEL, and MOTZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Thomas P. McNamara, Federal Public Defender, G. Alan DuBois,
Assistant Federal Public Defender, Raleigh, 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Unpublished opinions are not binding precedent in this circuit.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:
Thomas Junior Bell appeals the 120-month sentence imposed
after he pleaded guilty pursuant to a plea agreement to an
information charging one count of conspiracy to manufacture,
distribute, and possess with intent to distribute more than five
grams of methamphetamine or more than fifty grams of a mixture or
substance containing a detectable amount of methamphetamine, in
violation of 21 U.S.C. § 846 (2000) (Count One), and one count of
carrying a firearm during and in relation to a drug trafficking
crime, in violation of 18 U.S.C. § 924(c)(1)(A) (2000) (Count Two).
Because we find no error in the determination of Bell’s sentence,
we affirm.
On appeal, Bell asserts that his sentence violates the
Supreme Court’s holding in Blakely v. Washington, 542 U.S. 296
(2004). He specifically asserts that the enhancement to his
offense level on Count One that was based upon a substantial risk
of harm to his daughter violated the Sixth Amendment because facts
supporting that enhancement were not alleged in the information or
admitted by him. The Government responds, asserting that there is
no plain error in Bell’s sentence because the district court
imposed the mandatory minimum sentence required by statute for each
count, and because the Government’s downward departure motion was
based only on USSG § 5K1.1, the court had no authority to depart
below those statutory minimums.

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In United States v. Booker, 125 S. Ct. 738 (2005), the
Supreme Court applied the rationale of Blakely to the federal
sentencing guidelines and held that the mandatory guidelines scheme
that provided for sentence enhancements based on facts found by the
court violated the Sixth Amendment. Booker, 125 S. Ct. at 746-48,
755-56 (Stevens, J., opinion of the Court). The Court remedied the
constitutional violation by severing and excising the statutory
provisions that mandate sentencing and appellate review under the
guidelines, thus making the guidelines advisory. Id. at 756-57
(Breyer, J., opinion of the Court).
Subsequently, in United States v. Hughes, 401 F.3d 540,
546 (4th Cir. 2005), we held that a sentence that was imposed under
the pre-Booker mandatory sentencing scheme and was enhanced based
on facts found by the court, not by a jury (or, in a guilty plea
case, admitted by the defendant), constitutes plain error. That
error affects the defendant’s substantial rights and warrants
reversal under Booker when the record does not disclose what
discretionary sentence the district court would have imposed under
an advisory guideline scheme. Hughes, 401 F.3d at 546-56.
Sentencing courts were directed to calculate the appropriate
guideline range, consider that range in conjunction with other
relevant factors under the guidelines and 18 U.S.C.A. § 3553(a)
(West 2000 & Supp. 2005), and impose a sentence. If the district

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*U.S. Sentencing Guidelines Manual (2003) (“USSG”).
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court imposes a sentence outside the guideline range, the court
should state its reasons for doing so. Id. at 546.
Because Bell did not object to the sentencing range of
108 to 135 months of imprisonment on Count One set forth in the
presentence report (PSR) and adopted by the district court, we
review the district court’s guideline calculation for plain error.
United States v. Olano, 507 U.S. 725, 732 (1993); Hughes, 401 F.3d
at 547. Under the plain error standard, Bell must show: (1) there
was error; (2) the error was plain; and (3) the error affected his
substantial rights. Olano, 507 U.S. at 732-34. Even when these
conditions are satisfied, we may exercise our discretion to notice
the error only if the error “seriously affect[s] the fairness,
integrity or public reputation of judicial proceedings.” Id. at
736 (internal quotation marks omitted).
In determining the sentencing range for Count One under
the Sentencing Guidelines, * the probation officer enhanced the base
offense level by six levels pursuant to USSG § 2D1.1(b)(5)(C),
based upon the fact that the offense involved the manufacture of
methamphetamine and created a substantial risk of harm to the life
of a minor -- Bell’s one-year-old daughter who resided in the house
where Bell manufactured methamphetamine. After a three-level
reduction for acceptance of responsibility, Bell’s total offense
level was twenty-nine. This offense level and Bell’s criminal

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history category of III resulted in a sentencing range of 108 to
135 months of imprisonment on Count One.
Prior to sentencing, the Government moved for a downward
departure pursuant to USSG § 5K1.1 based upon Bell’s substantial
assistance. The district court granted the Government’s departure
motion, adopted the findings of the PSR, and sentenced Bell to
sixty months on each of Counts One and Two, to run consecutively,
for a total sentence of 120 months of imprisonment.
Bell correctly asserts that the facts supporting the
endangerment enhancement were not alleged in the information or
admitted by him as part of his guilty plea. If this enhancement
were removed, Bell’s offense level would be twenty-six, and his
Guideline range seventy-eight to ninety-seven months. United
States v. Evans, 416 F.3d 298, 300 n.4 (4th Cir. 2005) (“For
purposes of determining whether the district court erred, we
necessarily use [the] guideline range based on the facts
[appellant] admitted before adjusting that range for acceptance of
responsibility.”). Bell, however, benefitted from a downward
departure and received the sixty-month statutory mandatory minimum
sentence for the offense to which he pleaded guilty in Count One.
Accordingly, we conclude that Bell’s sentence does not violate the
Sixth Amendment.
We therefore affirm Bell’s conviction and sentence. We
dispense with oral argument because the facts and legal contentions

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are adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED

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