                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 12-5032


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

           v.

RAYNAULD GERALD BRADLEY, JR.,

                Defendant – Appellant.



Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Roger W. Titus, Senior District Judge.
(8:12-cr-00249-RWT-1)


Argued:   May 15, 2014                    Decided:   August 14, 2014


Before KING, WYNN, and FLOYD, Circuit Judges.


Vacated and remanded by unpublished per curiam opinion.


ARGUED:   Arthur   Samuel  Cheslock,  Baltimore,   Maryland,  for
Appellant.     Kelly O. Hayes, OFFICE OF THE UNITED STATES
ATTORNEY, Greenbelt, Maryland, for Appellee.     ON BRIEF: Rod J.
Rosenstein, United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Baltimore, Maryland, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

     Raynauld      Gerald    Bradley,       Jr.,    pleaded      guilty    in   the

District of Maryland to all charges in a three-count indictment

and was sentenced to 120 months in prison.                  For this appeal, his

court-appointed     lawyer    filed     a   brief     pursuant    to   Anders    v.

California, 386 U.S. 738 (1967), asserting that there were no

meritorious grounds for appellate relief.                    In fulfilling our

Anders obligation to independently review the record, however,

we have identified two instances of plain sentencing error that

warrant relief under the applicable standard.                    Accordingly, we

vacate Bradley’s sentence and remand for resentencing. 1



                                      I.

     The grand jury’s indictment of May 9, 2012, charged Bradley

with possession with intent to distribute a detectable amount of

marijuana,    in   contravention      of    21     U.S.C.    § 841(a)(1)    (Count

One); possession of firearms in furtherance of the Count One

drug offense, in violation of 18 U.S.C. § 924(c) (Count Two);

and possession of firearms by a convicted felon, as proscribed


     1
       On October 31, 2013, we denied the government’s motion to
dismiss this appeal as barred by Bradley’s waiver of the right
to appeal included in his plea agreement.         This decision
addresses the sentencing issues only, in that we discern no
infirmities that would entitle Bradley to relief from any of his
convictions.



                                        2
by   18    U.S.C.   § 922(g)(1)   (Count   Three).   According   to   the

indictment, the offenses occurred on or about April 27, 2011.

      In late July 2012, Bradley and the government entered into

a written plea agreement, under which Bradley admitted his guilt

to Counts One through Three.        See United States v. Bradley, No.

8:12-cr-00249 (D. Md. July 27, 2012), ECF No. 22.           As part of

the agreement, the parties stipulated that the government would

have proven the following facts at trial:

           On April [27], 2011,[ 2] agents with the Bureau of
      Alcohol,   Tobacco,   Firearms,   and   Explosives  and
      troopers with the Maryland State Police executed a
      search warrant at [BRADLEY’s residence in Prince
      George’s County, Maryland].     Pursuant to the search
      warrant, law enforcement officers recovered a loaded
      Davis Industries, Model P380, .380 caliber handgun
      . . . ; a loaded Zabala, Model Unknown, 12 gauge
      double barreled shotgun with a cut-off wooden stock
      . . . ; 1522.3 grams of marijuana; 2.9 grams of
      cocaine base, commonly known as crack; two digital
      scales and one sifter with marijuana residue; drug
      packaging materials; three handgun magazines; 15
      rounds of assorted ammunition; and approximately
      $5,774.00 in United States currency.

           After waiving his Miranda rights,[ 3] BRADLEY
      admitted that the firearms, marijuana, and crack
      belonged to him.      BRADLEY intended to sell the
      marijuana that was found in his residence and
      possessed the digital scales, the sifters, and the
      packaging   materials to    measure  and   package the
      marijuana for sale.      BRADLEY previously had sold
      marijuana in Maryland from 2000 through 2006.

      2
       Although the stipulation contains the date April 14, 2011,
it is undisputed that the correct date is April 27, 2011.
      3
          See Miranda v. Arizona, 384 U.S. 436 (1966).



                                     3
Id. at 9.          The parties further stipulated, inter alia, that

Bradley “knowingly possessed both firearms in order to protect

his drug distribution efforts,” and that he had been convicted

on   September      26,   2006,      of       two    felonies    in     a    Maryland      state

court.     Id.

      Following      Bradley’s        guilty         pleas,     his    probation       officer

prepared a presentence report (the “PSR”).                            For purposes of the

Sentencing       Guidelines,      the         PSR     grouped    the        Count    One    drug

offense     with    the   Count       Three          firearms    offense.            See    USSG

§ 3D1.2(c) (2011).             Because it was the more serious offense,

Count One was used to determine the group offense level.                                        Id.

§ 3D1.3(a).        The PSR calculated — taking into consideration not

only the 1.5223 kilograms of marijuana recovered from Bradley’s

residence on April 27, 2011, but also additional marijuana that

he   had   previously      sold      —        that   Bradley’s        Count    One    relevant

conduct     involved      100    to       400       kilograms    of     marijuana.              Id.

§ 1B1.3(a).        Consequently, the PSR assigned an offense level of

26, id. § 2D1.1(c)(7), which it then lowered to 23 premised on

Bradley’s        acceptance     of    responsibility,             id.       § 3E1.1.            The

offense    level     of   23    and       a    criminal       history       category       of   II

resulted in an advisory Guidelines range of fifty-one to sixty-

three months of imprisonment, with Count Three’s prison term to




                                                4
run     concurrently         with     that     imposed          on     Count        One.       Id.

§ 5G1.2(c).

      The PSR further determined, however, that Count One carried

a   statutory      minimum      sentence           of    five    years       (sixty        months)

pursuant to 21 U.S.C. § 841(b)(1)(B).                         In so concluding, the PSR

relied on the same relevant conduct — the sale of more than 100

kilograms of marijuana prior to April 27, 2011 — that had been

used to calculate Bradley’s offense level under the Sentencing

Guidelines.         As   a    result,     the       advisory         Guidelines       range    for

Count One became sixty to sixty-three months of imprisonment.

      With respect to the Count Two firearms offense, the PSR

recognized        that   the        advisory        Guidelines         sentence        was    the

statutory minimum, to run consecutively to the concurrent prison

terms imposed on Counts One and Three.                               See USSG § 2K2.4(b).

The PSR thus recommended for Count Two a concurrent term of five

years    (sixty     months),        the   statutory           minimum    under       18     U.S.C.

§ 924(c)(1)(A)(i).

      In    his    sentencing        memorandum          of     December       4,    2012,     and

during     his    sentencing        hearing        of    December       6,     2012,       Bradley

disputed that he had sold more than 100 kilograms of marijuana

and   objected      to   being       sentenced          on    Count    One     to    21     U.S.C.

§ 841(b)(1)(B)’s five-year minimum.                          Nonetheless, the district

court found that Bradley “rather easily [got] up to the 100-

kilogram level” and thus agreed with the PSR that the advisory

                                               5
Guidelines         range   for    Counts    One     and    Three    was     fifty-one     to

sixty-three         months       of   imprisonment.             See      Transcript      of

Sentencing at 43-44, United States v. Bradley, No. 8:12-cr-00249

(D.    Md.    Dec.    6,     2012;    filed       Apr.    29,   2013),      ECF    No.   49.

Additionally, the court concluded that Count One’s Guidelines

range was “trumped by the mandatory minimum,” leaving “a fairly

narrow sentencing range” of sixty to sixty-three months.                            Id. at

56.    The court settled on a sixty-month sentence on Count One

and    a   concurrent        “same    sentence”      on    Count      Three,      plus   the

mandatory consecutive sixty-month sentence on Count Two.                            Id. at

59.    By its judgment of December 6, 2012, the court sentenced

Bradley to a total of 120 months in prison.

       Bradley timely noted this appeal, and, on June 6, 2013, his

court-appointed lawyer filed the Anders brief.                            Thereafter, on

June    11,    2013,       the   district     court       amended     its   judgment     to

correct an error with respect to the date of Bradley’s offenses.



                                            II.

       On June 17, 2013, the Supreme Court issued its decision in

Alleyne       v.    United       States,    133     S.    Ct.    2151,      2155    (2013)

(overruling contrary precedent and holding “that any fact that

increases the mandatory minimum is an ‘element’ that must be

submitted to the jury”).               We subsequently directed the parties

to file supplemental briefs addressing the impact of Alleyne on

                                              6
Bradley’s case, including whether the district court erred by

imposing a statutory minimum sentence on Count One.                   During oral

argument, we asked whether the court also erred in its Count One

statutory minimum analysis by considering drug quantities beyond

those involved in the offense of conviction, in contravention of

our decision in United States v. Estrada, 42 F.3d 228, 232 & n.4

(4th Cir. 1994).

      Because Bradley did not articulate either an Alleyne- or

Estrada-type ground when he objected in the district court to

application of the mandatory minimum, our review is for plain

error.     See Fed. R. Crim. P. 52(b); United States v. Mackins,

315 F.3d 399, 406-07 (4th Cir. 2003).                  To demonstrate plain

error, a defendant bears the burden of showing (1) that an error

occurred, (2) that it was plain, and (3) that it affected his

substantial rights.        See United States v. Olano, 507 U.S. 725,

732     (1993).     If    the   defendant     can    make     such    a   showing,

correction of plain error lies within our discretion, which we

“should not exercise . . . unless the error seriously affects

the     fairness,    integrity     or    public     reputation       of   judicial

proceedings.”       Id.   (alterations       and   internal    quotation      marks

omitted).

      As for the first Olano prong, the district court committed

error    under    both   Alleyne   and   Estrada.       Nearly       twenty   years

before Bradley’s sentencing, in Estrada, we recognized that a

                                         7
“mandatory minimum sentence is applied based only on conduct

attributable to the offense of conviction.”                             See 42 F.3d at 232

(citing United States v. Darmand, 3 F.3d 1578, 1581 (2d Cir.

1993)).     That is, “unlike the relevant conduct provisions of the

sentencing       guidelines       that       permit         the        court     to       consider

quantities that are not a part of the offense of conviction, the

quantity of narcotics attributed to the defendant for purposes

of     determining      the     applicability          of        the        mandatory      minimum

provisions of [21 U.S.C.] § 841(b) is based only on specific

offense of conviction conduct.”                      Id. at 232 n.4.                    Bradley’s

Count One offense of conviction conduct was the possession on

April    27,    2011,      of   1.5223      kilograms            of     marijuana         that    he

intended to sell.          Accordingly, solely that quantity should have

been    considered      by      the    district        court           in    identifying         the

applicable penalty provision of § 841(b).

       Following     Bradley’s        sentencing,           in    Alleyne,          the    Supreme

Court    extended     to      mandatory      minimum         sentences           the      rule    of

Apprendi v. New Jersey, 530 U.S. 466, 490 (2000) (holding that,

“[o]ther than the fact of a prior conviction, any fact that

increases      the   penalty          for   a       crime        beyond       the      prescribed

statutory maximum must be submitted to a jury, and proved beyond

a reasonable doubt”).             Concomitantly, Alleyne overruled Harris

v. United States, 536 U.S. 545 (2002), which had “held that

judicial       factfinding       that       increases        the        mandatory          minimum

                                                8
sentence for a crime is permissible under the Sixth Amendment.”

Alleyne, 133 S. Ct. at 2155.          The Alleyne Court explained that

“[j]uries must find any facts that increase either the statutory

maximum or minimum because the Sixth Amendment applies where a

finding of fact both alters the legally prescribed range and

does so in a way that aggravates the penalty.”              Id. at 2161 n.2

(emphasis omitted); see also United States v. Booker, 543 U.S.

220, 232 (2005) (observing that a defendant’s Sixth Amendment

“right to have the jury find the existence of any particular

fact that the law makes essential to his punishment . . . is

implicated whenever a judge seeks to impose a sentence that is

not   solely   based   on   facts   reflected   in   the   jury   verdict    or

admitted by the defendant” (internal quotation marks omitted));

United States v. Cotton, 535 U.S. 625, 627 (2002) (“In federal

prosecutions,     such      facts   must   also      be    charged   in     the

indictment.”).     Thus, as we now know from Alleyne, Bradley was

not subject to § 841(b)(1)(B)’s five-year minimum because the

threshold drug quantity (100 kilograms of marijuana) was neither

alleged in the indictment nor admitted by Bradley in connection

with his guilty plea.

      Turning to the second Olano prong, the district court’s

Alleyne and Estrada errors were plain.            As discussed above, our

Estrada decision has been in force since 1994.               See Olano, 507

U.S. at 734 (explaining that error is plain if it “is clear

                                      9
under    current         law”).          And,     although          Bradley’s          sentencing

predated    the     Supreme       Court’s        2013    decision         in    Alleyne,       that

decision was issued during the pendency of this appeal.                                        See

Johnson v. United States, 520 U.S. 461, 467 (1997) (concluding

that,    “where     the    law     at     the    time     of      trial    was    settled       and

clearly contrary to the law at the time of appeal[,] it is

enough     that    an      error     be    plain        at     the    time       of     appellate

consideration”).

     Nevertheless, the government contends that Bradley cannot

overcome    the     third        prong    of     Olano,      in     that    he    cannot       show

prejudice.        That is so, according to the government, because the

district court made clear that it would have sentenced Bradley

to sixty months on Count One even if the statutory minimum did

not apply, and because Bradley was in any event sentenced to a

concurrent        term     of      sixty        months       on     Count       Three.          See

Supplemental Br. of Appellee at 16 (“[E]ven if the court had not

applied the mandatory minimum on Count One, the defendant still

would    have      faced     60     months’          imprisonment          on    Count    Three,

followed by 60 months’ imprisonment on Count Two . . . .                                        As

such,    independent        of    the     sentence       imposed      on       Count    One,   the

defendant    would        have     faced       the    same        total    sentence       of   120

months’ imprisonment.” (footnote omitted)).

     Upon careful study of the sentencing hearing transcript, we

disagree with the government.                     First, “we are unable to state

                                                10
with any certainty that [the district court] would have imposed

the same sentence had the [mandatory minimum] not been in play.”

Cf. United States v. Gomez, 690 F.3d 194, 203 (4th Cir. 2012)

(rejecting government’s harmlessness contention with respect to

Guidelines      calculation     error).          Indeed,      the   court    emphasized

that it was constrained by the five-year statutory minimum and

imposed what it thought was the shortest possible prison term.

See,    e.g.,    Transcript    of       Sentencing       at   57,   United   States   v.

Bradley, No. 8:12-cr-00249 (D. Md. Dec. 6, 2012; filed Apr. 29,

2013), ECF No. 49 (“Congress has made a determination by which

I’m bound that mandatory minimums must be imposed and I have no

discretion in that regard.               So . . . , the sentence must be at

least 120 months[, i.e., consecutive terms of sixty months each

on Counts One and Two].”).

       Furthermore, we recognize that, in imposing the concurrent

sixty-month      sentence     on    Count       Three,    the   district     court    was

simply complying with the Sentencing Guidelines.                       Significantly,

Counts One and Three were grouped for Guidelines purposes, with

Count    One    being   designated        the    more    serious     offense   used    to

determine the group offense level.                      Once the court determined

the advisory Guidelines range for Count One and chose a bottom-

end sentence of sixty months, the court was required to impose a

concurrent term of the same sixty-month length on Count Three.

See USSG       § 5G1.2(b)-(c)       &    cmt.    n.1     (2011);    United   States    v.

                                            11
Salter, 241 F.3d 392, 395-96 (5th Cir. 2001). 4                         Evincing an

understanding of its section 5G1.2 obligation, the court focused

on Count One and barely discussed Count Three.                     Nothing in the

sentencing hearing transcript indicates that the court engaged —

as the government incorrectly suggests it could have — in a

separate and independent analysis of the appropriate Count Three

sentence.

       In these circumstances, the district court’s Alleyne and

Estrada errors afflicted Bradley’s sentence as to both Counts

One   and   Three,       and   Bradley    can   make    the    Olano    third   prong

showing     that    those      errors    affected      his    substantial   rights.

Respecting the final prong of Olano, we exercise our discretion

to    correct      the   errors,    because     allowing       Bradley’s    improper

mandatory minimum sentence to stand would seriously affect the

fairness,       integrity,       and     public     reputation         of   judicial


       4
       Notably, clarifying revisions to section 5G1.2 became
effective on November 1, 2012, more than a month prior to
Bradley’s December 6, 2012 sentencing under the 2011 edition of
the Guidelines.      As revised, section 5G1.2’s commentary
“clarifies that when any count involves a mandatory minimum that
restricts the defendant’s guideline range, the guideline range
is restricted as to all counts.” USSG app. C, amdt. 767 (2012).
The commentary also reiterates that, “[e]xcept as otherwise
required by [the Guidelines] or any other law, the total
punishment is to be imposed on each count and the sentences on
all counts are to be imposed to run concurrently to the extent
allowed by the statutory maximum sentence of imprisonment for
each count of conviction.”       USSG § 5G1.2 cmt. n.1 (2012)
(echoing USSG § 5G1.2 cmt. n.1 (2011)).



                                          12
proceedings.          See Alleyne, 133 S. Ct. at 2160-63 (explaining why

“there is no basis in principle or logic to distinguish facts

that raise the maximum from those that increase the minimum”).

In    so    doing,     we   reject    the     government’s     contention    that    we

should deny resentencing based on overwhelming and essentially

uncontroverted          evidence      that     Bradley    sold     more     than    100

kilograms of marijuana.              See Cotton, 535 U.S. at 633 (concluding

that       Apprendi    error   did     not    seriously    affect    the    fairness,

integrity, or public reputation of judicial proceedings where

evidence of drug quantity was overwhelming and uncontroverted).

The    government’s         contention         depends    on    quantities     beyond

Bradley’s Count One offense of conviction conduct and, thus, is

foreclosed by Estrada.



                                             III.

       Pursuant to the foregoing, we vacate Bradley’s sentence and

remand for resentencing.

                                                               VACATED AND REMANDED




                                              13
