Professional Documents
Culture Documents
No. 04-4543
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.
James C. Fox, Senior
District Judge. (CR-04-35)
Argued:
Decided:
PER CURIAM:
John Ervin Wilder, Jr. appeals from the concurrent sixty month
sentence imposed by the district court following his pleas of
guilty to possession with intent to distribute 500 grams or more of
cocaine, 21 U.S.C. 841(a)(1) and (b)(1)(B), and possession with
intent to distribute marijuana.
Id.
I
On November 5, 2003, a confidential informant notified the
Nash County, North Carolina Sheriffs Office of an impending drug
transaction involving Luther Breland and Wilder.
As a result of
Pursuant
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or more of cocaine.
Count Two
recommended
three
level
reduction
for
acceptance
The
of
sixty months.
if
offense
involves
less
than
fifty
kilograms
of
marijuana).
Wilder made several objections to the PSR. First, he objected
to the two-level enhancement for firearm possession, arguing both
that there was no factual support for the enhancement and that the
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At the beginning of
should
not
apply
and
that
he
qualified
for
the
The sentencing hearing took place after the Supreme Court had
issued its decision in Blakely, but before the Court had issued its
decision in United States v. Booker, 125 S. Ct. 738 (2005).
- 4 -
The
to
the
application
of
the
safety
valve
provision.
The
II
On
appeal,
Wilder
contends
that
the
district
court
was
We agree.
In Booker,
the Supreme Court held that its decision in Blakely applied to the
Sentencing Guidelines and that the mandatory Guidelines scheme
providing for sentence enhancements based on facts found by the
sentencing court violated the Sixth Amendment.
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Id. at 756-57
Subsequently, in Hughes, we
[the]
sentencing.
Guidelines
and
take
them
into
account
when
If that
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Thus, the
the
sentencing
court
to
calculate
the
defendants
Procedure, an appellate court may disregard any error that does not
affect substantial rights.
United
Substantial
rights are affected when the error alters the outcome of the
proceeding.
Id.
reviewing court is certain that any such error did not affect the
district courts selection of the sentence imposed.
United States, 503 U.S. 193, 203 (1992).
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Williams v.
III
For the reasons stated herein, we vacate Wilders sentence and
remand the case for resentencing.