US v. William H. Taft, Jr., No. 06-5172 (4th Cir. 2008)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 06-5172 UNITED STATES OF AMERICA, Plaintiff Appellee, v. WILLIAM HARRIS TAFT, JR., Defendant Appellant. Appeal from the United States District Court for the Western District of North Carolina, at Charlotte. Graham C. Mullen, Senior District Judge. (3:03-cr-00208) Argued: September 25, 2008 Decided: November 17, 2008 Before WILKINSON, MICHAEL, and SHEDD, Circuit Judges. Affirmed by unpublished per curiam opinion. ARGUED: Alton Larue Gwaltney, III, MOORE & VAN ALLEN, Charlotte, North Carolina, for Appellant. Amy Elizabeth Ray, OFFICE OF THE UNITED STATES ATTORNEY, Asheville, North Carolina, for Appellee. ON BRIEF: Gretchen C. F. Shappert, United States Attorney, Charlotte, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: William conspiracy Harris to U.S.C. § 371. Taft, defraud the Jr. pled United guilty States, to in one count violation of of 18 He now appeals his 41-month sentence imposed upon remand for resentencing pursuant to United States v. Booker, 543 U.S. 220 (2005). For the following reasons, we affirm. Taft s primary argument is that the district court applied the Sentencing Guidelines in a mandatory fashion by giving a presumption of reasonableness violation of Booker. 1 to the Guidelines range in In Rita v. United States, 127 S. Ct 2456, 2465 (2007), which had not yet been decided at the time of sentencing, the reasonableness Supreme presumption Court to limited appellate application review and of the explicitly stated that the sentencing court does not enjoy the benefit of a legal presumption that the Guidelines sentence should apply. Taft filed written objections prior later referenced at the hearing. to sentencing, which he In his written objections, Taft objected to our post-Booker sentencing scheme. However, Taft did not explicitly object to any application of a district court presumption of reasonableness 1 to the Guidelines range. Taft also contends that his sentence violates the Sixth Amendment because it is based on facts not found by a jury and is unreasonable. We have reviewed the record and find no merit to these contentions. 2 Subsequently, when the district court noted a presumption of reasonableness twice during the hearing, Taft explicitly object on these grounds either time. did not properly object to the presumption, failed to Because Taft we review his sentence for plain error. See United States v. Olano, 507 U.S. 725 (1993). 2 To establish plain error, Taft must show that an error occurred, that the error was plain, and that the error affected his substantial rights. Id. at 732-34. Even if Taft makes this three-part showing, correction of the error remains within our discretion, seriously which we affect[s] should the not exercise fairness, unless integrity the or error public reputation of [the] judicial proceedings. Id. at 736 (internal citations omitted). Our review of the record leads us to conclude there was error. See Rita, 127 S. Ct at 2465. The error is also plain. See Johnson v. United States, 520 U.S. 461, 468 (1997) (holding that in a case. . .where the law at the time of trial was settled and clearly contrary to the law at the time of appeal 2 Plain error is appropriate in reviewing post-Booker sentencing appeals. See United States v. White, 405 F.3d 208, 217 (4th Cir. 2005). Moreover, at least one other circuit court has applied plain error analysis to an argument similar to the one Taft presents (i.e., the district court s application of a reasonableness presumption to a Guideline sentence). See United States v. Howe, 538 F.3d 842, 857 (8th Cir. 2008). 3 it is enough that an error be plain at the time of appellate consideration ). We must now determine whether Taft has shown that the plain error in sentencing affected his substantial rights. U.S. at 734. i.e., the In this regard, Taft must demonstrate prejudice error proceedings. Id. error not At affected the outcome he would have the district court received a less severe We find that Taft has failed to make this showing. sentencing, the district considered the § 3553(a) factors. noted of In other words, Taft must show that had the occurred, sentence. Olano, 507 a presumption Guidelines, it also of noted that it had Although the district court reasonableness explicitly Guidelines were advisory. court and in correctly regard to the noted that the Further, the district court did not blindly accept the sentence calculations contained in the PSR. In fact, the district court, in giving individualized consideration to Taft, decreased his criminal history category from II to I. Although the court could have been more precise in its sentencing comments, it is clear that the court knew the Guidelines were advisory and that the court gave consideration to the § 3553(a) factors. It is also clear that the court fashioned an individualized sentence for Taft. Therefore, Taft has not persuaded us that his sentence would have been less had 4 the district court not erroneously stated there was a presumption of reasonableness to a Guidelines sentence. Based on the foregoing, we affirm the district court s judgment. AFFIRMED 5
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