162 Fed.Appx. 199
This case was not selected for publication in the Federal
Reporter.
Not for Publication in West’s Federal Reporter See Fed.
Rule of Appellate Procedure 32.1 generally governing citation of judicial
decisions issued on or after Jan. 1, 2007. See also Fourth Circuit Rule 32.1
(Find CTA4 Rule 32.1)
United States Court of Appeals,
Fourth Circuit.
UNITED STATES of America,
Plaintiff-Appellee,
v.
Iyman FARIS, Defendant-Appellant.
No. 03-4865.
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Submitted: Nov. 23, 2005.
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Decided: Dec. 29, 2005.
Background:
Defendant was convicted in the United States District Court for the Eastern
District of Virginia, Leonie M.
Brinkema, J., of conspiracy to provide material support to a foreign
terrorist organization, and providing material support to a foreign terrorist
organization. After the Court of Appeals affirmed denial of defendant’s motion
to withdraw guilty plea, 388 F.3d 452,
the Supreme Court, 544 U.S. 916,
125 S.Ct. 1637, 161 L.Ed.2d 469, vacated and remanded.
Holding: On remand, the Court of Appeals held that sentencing
under mandatory rather than advisory sentencing guidelines was not plain error.
Affirmed.
West Headnotes (1)
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Criminal Law |
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Defendant’s sentencing for conspiracy to
provide material support to a foreign terrorist organization, and providing
material support to a foreign terrorist organization under mandatory rather
than advisory sentencing guidelines was not reversible plain error, since
record provided no indication that district court would have imposed a lesser
sentence under an advisory guidelines scheme. U.S.S.G. §
1B1.1 et seq., 18 U.S.C.A.; Fed.Rules
Cr.Proc.Rule 52(b), 18 U.S.C.A. |
*199 On Remand from the United States Supreme Court. (S.Ct.
No. 04-6848).
David B. Smith,
English & Smith, Alexandria, Virginia, for Appellant. Joseph N. Kaster,
United States Department of Justice, Washington, D.C.; Paul J. McNulty,
United States Attorney, Neil
Hammerstrom, Jr., Assistant United States Attorney, Alexandria,
Virginia, for Appellee.
Before WILKINS,
Chief Judge, and NIEMEYER
and TRAXLER,
Circuit Judges.
Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding
precedent in this circuit. See Local Rule 36(c).
PER CURIAM:
**1 This case is before us on remand from the United States
Supreme Court for further consideration in light of United States v.
Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). In our
prior opinion, we affirmed Faris’s conviction and 240-month sentence imposed
after he pleaded guilty, pursuant to a plea agreement, to one count of
conspiracy to provide material support to a foreign terrorist organization, in
violation of 18 U.S.C.A. §§
371, 2339B (West
Supp.2005), and one count of providing material support to a foreign
terrorist organization, in violation of 18 U.S.C.A. §
2339A (West Supp.2005). United States v.
Faris, 388 F.3d 452 (4th Cir.2004), vacated, 544 U.S. 916,
125 S.Ct. 1637, 161 L.Ed.2d 469 (2005). After reviewing Faris’s
appeal in light of Booker, we affirm his conviction for the reasons
stated in our prior opinion and affirm his sentence.
*200 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 (Stevens, J., opinion of the Court). The Court remedied the
constitutional violation by severing two statutory provisions and thereby
making the Guidelines advisory. Id. at 756-67
(Breyer, J., opinion of the Court). After Booker, courts must calculate
the appropriate Guideline range, consider the 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 a
district court imposes a sentence outside the Guideline range, the court must
state its reasons for doing so as required by 18 U.S.C.A. §
3553(c)(2) (West 2000 & Supp.2005). Hughes, 401 F.3d at
546. The sentence must be “within the statutorily prescribed range and ...
reasonable.” Id. at 547.
Faris did not rely on Booker in the district court
because he was sentenced before the Supreme Court decided that case, and he did
not make a Sixth Amendment objection to the Guideline calculations.
Consequently, the district court’s sentence is reviewed for plain error. Fed.R.Crim.P.
52(b); United States v.
Hughes, 401 F.3d 540, 547 (4th Cir.2005). To demonstrate plain error,
Faris must establish that error occurred, that it was plain, and that it
affected his substantial rights. Id. at 547-48.
If a defendant satisfies 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).
Faris concedes that no Sixth Amendment error occurred in
the determination of his sentence because the Guideline* calculations were supported by his admissions during the
guilty plea hearing and the written statement of facts incorporated into his
plea agreement, which he acknowledged during the plea hearing. Our review of
the record supports Faris’s concession that his sentence is not affected by
Sixth Amendment error.
**2 Faris also concedes that he cannot demonstrate any
prejudice caused by the mandatory application of the Guidelines. Faris’s
offense level and criminal history resulted in a Guideline range of
imprisonment of 360 months to life. The statutory maximum term of imprisonment
for the offenses to which Faris pleaded guilty, however, was 240 months, which
the district court imposed. Because the record provides no indication that the
district court would have imposed a lesser sentence under an advisory
Guidelines scheme, we find no error in the mandatory application of the
Guidelines. United States v.
White, 405 F.3d 208, 216-24 (4th Cir.2005).
Accordingly, we affirm Faris’s conviction and sentence.
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
162 Fed.Appx. 199, 2005 WL 3556095