US v. Freeman, No. 04-4064 (4th Cir. 2006)
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ON REHEARING UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 04-4064 UNITED STATES OF AMERICA, Plaintiff - Appellee, versus LESLIE FOUNTRESA FREEMAN, Defendant - Appellant. Appeal from the United States District District of North Carolina, at Charlotte. District Judge. (CR-02-191-MU) Submitted: June 30, 2005 Court for the Western Graham C. Mullen, Chief Decided: February 13, 2006 Before WIDENER, WILKINSON, and DUNCAN, Circuit Judges. Vacated and remanded by unpublished per curiam opinion. Chiege O. Kalu Okwara, LAW OFFICE OF CHIEGE O. KALU OKWARA, Charlotte, North Carolina, for Appellant. Gretchen C. F. Shappert, United States Attorney, D. Scott Broyles, Assistant United States Attorney, Charlotte, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c). PER CURIAM: Leslie Fountresa Freeman appealed her convictions and sentence for possession with intent to distribute 500 grams or more of cocaine under 21 U.S.C. § 841(a)(1) (2000), and importation of cocaine into the United States under 21 U.S.C. § 952(a) (2000). Initially we affirmed Freeman s convictions and sentence. Before the mandate issued, however, Freeman filed a petition for panel rehearing and rehearing en banc again challenging her convictions, and for the first time challenging her sentence under Blakely v. Washington, 542 U.S. 296 (2004), and in anticipation of United States v. Booker, 125 S. Ct. 738 (2005). Because Booker constitutes an intervening change in the law bearing on the outcome of this appeal, we grant rehearing, vacate Freeman s sentence, and remand for resentencing. We continue to affirm Freeman s convictions. In light of Booker, United States v. Hughes, 401 F.3d 540 (4th Cir. 2005), and United States v. White, 405 F.3d 208 (4th Cir. 2005), we find that the district court plainly erred in imposing Freeman s sentence under the then mandatory sentencing guidelines scheme.* We therefore vacate Freeman s sentence and remand for resentencing consistent with Booker. Although the Sentencing Guidelines are no longer mandatory, Booker makes clear that a * Just 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 Freeman 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 ). - 2 - 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. consider this Hughes, 401 F.3d at 546. sentencing range along with The court should the other factors described in 18 U.S.C.A. § 3553(a) (West 2000 & Supp. 2005), and then impose a sentence. If that sentence falls outside the Id. Guidelines range, the court should explain its reasons for imposing a non-Guidelines sentence, as required by 18 U.S.C.A. § 3553(c)(2) (West 2000 & Supp. 2005). Id. The sentence must be within the statutorily prescribed range and . . . reasonable. Id. 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. VACATED AND REMANDED - 3 -
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