                             UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                             No. 03-4489



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

           versus


NATHANIEL JONES, III,

                                             Defendant - Appellant.



Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. Frank W. Bullock, Jr.,
District Judge. (CR-02-155)


Argued:   March 17, 2006                     Decided:   May 16, 2006


Before GREGORY and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Vacated and remanded by unpublished opinion. Judge Gregory wrote
the majority opinion, in which Judge Duncan joined. Senior Judge
Hamilton wrote a separate opinion concurring in the judgment in
part and dissenting in part.


ARGUED: Lisa S. Costner, Winston-Salem, North Carolina, for
Appellant.   Lawrence Patrick Auld, OFFICE OF THE UNITED STATES
ATTORNEY, Greensboro, North Carolina, for Appellee. ON BRIEF: Anna
Mills Wagoner, United States Attorney, Paul A. Weinman, Assistant
United States Attorney, Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).




                               2
GREGORY, Circuit Judge:

     Nathaniel Jones, III pleaded guilty to the use of a firearm

during carjacking, in violation of 18 U.S.C. § 924(1)(A)(ii) & (2),

and armed bank robbery, in violation of 18 U.S.C. § 2113(d).                     On

appeal, Jones asserts that the district court committed plain error

under United States v. Booker, 543 U.S. 220 (2005), by imposing

three sentencing enhancements related to the armed bank robbery

charge.     Because we find that the sentence violated the Sixth

Amendment   based    on    the   third     enhancement    for     obstruction    of

justice, we vacate and remand for resentencing.



                                         I.

     Jones and his co-defendant, Carlos Antonio Williams, were

charged by a grand jury in a second superseding indictment, which

asserted six counts related to carjacking and bank robbery.                  Jones

entered into a plea agreement only with respect to Count Three,

which   alleged    that    defendants      used   and   carried    a   firearm   in

relation    to    carjacking,     and     Count   Five,   which    alleged   that

defendants committed armed bank robbery.                  The government also

submitted a factual basis in support of the plea, which detailed

the carjacking and armed bank robbery.

     According     to     the   factual    basis,   Jones   met    with   Komikka

Gregory, Rashime Gardner, and Williams on August 20, 2000, to

discuss plans to rob a bank.        After deciding on a particular branch


                                          3
of Bank of America, Jones gave Gregory the keys to his rental truck

and told the others to steal a car to use in the robbery.          Gregory,

Gardner, and Williams subsequently drove around and approached a

woman at a car wash.        Gardner directed the woman to exit her car,

and Williams brandished a gun.        After the woman got out of the car,

Gardner and Williams drove the car to an area near the designated

bank.    Gregory, Gardner, and Williams then drove Jones’s truck to

Jones’s residence.

     The factual basis further asserted that the next morning,

Gregory, Gardner, Williams, and Jones drove the truck to where the

stolen car had been parked, parked the truck, and drove the stolen

car to the bank.          At that point, Jones, Gardner, and Williams

entered the bank, with Jones and Williams each armed with handguns.

Williams “jumped over the teller counter and brandished his handgun

at the tellers.”          J.A. 36.     Gardner took money from several

tellers. When two customers entered the bank, Jones brandished his

handgun and ordered them to the floor.         Upon exiting the bank, the

three men got into the stolen car, which was being driven by

Gregory, and drove to where the truck had been parked.             The four

abandoned the stolen car and drove the truck to Jones’s residence,

where they split $5,901 in robbery proceeds.

        At   the   plea   hearing,   the   district   court   discussed   the

proffered factual basis with the parties.             At that time, Jones’s

counsel objected to a portion of the factual basis that provided


                                       4
that Jones “told” the others to steal a car to use in the robbery.

J.A. 34.      Counsel argued that “there was no express telling, but

the general factual basis is correct.”        J.A. 59.     When the district

court asked whether “generally you and Mr. Jones are in agreement

with the factual basis,” Jones’s counsel replied “Yes, sir, Your

Honor.”      Id.

     The     probation   office    subsequently   prepared    a   presentence

investigation report (“PSR”) applying the 2002 edition of the

United States Sentencing Guidelines (“Guidelines”).               With respect

to the armed bank robbery charge in Count Five, the PSR calculated

a base offense level of twenty under § 2B3.1.1             The PSR added (1)

a two-level enhancement for stealing property from a financial

institution under § 2B3.1(b)(1); (2) a six-level enhancement for

using    a   firearm   under   §   2B3.1(b)(2)(B);   and   (3)    a   two-level

enhancement because the armed bank robbery involved carjacking

under § 2B3.1(b)(5).           The PSR further recommended a two-level

enhancement for obstruction of justice pursuant to § 3C1.1 based on

an intercepted letter Jones had apparently written to Gardner, who

was then an inmate at Rowan Correctional Center, urging him to



     1
      The PSR calculated a Guidelines range only for Count Five,
because the Guidelines sentence for Count Three was determined by
statute. J.A. 124; § 2K2.4 (stating that the Guidelines sentence
for violating 18 U.S.C. § 924(c) is “the minimum term of
imprisonment required by the statute”).    The relevant criminal
statute, 18 U.S.C. § 924(c)(1), requires a minimum sentence of
seven years, to run consecutively with any other term of
imprisonment.

                                       5
“tell the police me and Carlos didn’t have anything to do with it”

or to “say nothing.”      J.A. 123.   Ultimately, with a total offense

level of thirty-two and a criminal history category of I, the PSR

recommended a Guidelines range of 121 to 151 months’ imprisonment

for Count Five.      J.A. 132.    Jones did not file any objections to

the PSR.

      At the joint sentencing hearing for Jones and Williams,

Williams’s counsel first asserted that “[o]ur objection was not to

any of the factual content of the presentence report, but rather

was to the guideline application” regarding the enhancement for

using a firearm during the robbery under § 2B3.1(b)(2)(B).              J.A.

71.      In addition, Williams’s counsel stated that “I did not

understand from the government’s response that the government had

any objection to the facts as set forth in the presentence report.”

Id.      Although Jones had not raised a similar objection, the

district court announced that it would consider the issue with

respect to both Williams and Jones.

      Immediately    before   the   government   began   to   present   its

evidence, Williams’s counsel objected to “the government presenting

evidence that will contradict any aspect of the facts set out in

the presentence report without having time to file an objection to

them.”    J.A. 74.   Jones’s counsel joined this objection.      J.A. 75.

After    the   district   court   acknowledged   these   objections,    the

government presented its evidence.


                                      6
     After hearing evidence regarding the circumstances of the

actual bank robbery, the district court determined that Williams

and Jones had brandished, and not used (which carried a higher

enhancement), a firearm during the robbery.            Accordingly, the

district court adjusted Jones’s recommended Guidelines range from

a total offense level of thirty-two to thirty-one, thereby yielding

a Guidelines range of 108 to 135 months’ imprisonment.

     When the district court asked Jones’s counsel whether there

were any other issues, counsel responded, “we have no formal

objections filed.”     J.A. 90.      Counsel did, however, request a

reduction for acceptance of responsibility.           The district court

remarked   that   imposing    a   departure   based   on   acceptance   of

responsibility appeared to be inconsistent with Jones’s upward

enhancement for obstruction of justice.           In response, counsel

stated, “I believe the letters they were using for the [obstruction

of justice] enhancement were done at least at a point in time prior

to this matter being brought before the federal judiciary . . . .”

J.A. 90-91.   The district court nevertheless rejected the proposed

reduction for acceptance of responsibility.

     The district court thus imposed a sentence of 120 months with

respect to Count Five, and a consecutive sentence of 84 months with

respect to Count Three.      Jones now appeals his sentence.




                                     7
                                   II.

                                    A.

      We review the sentencing errors identified in this appeal for

plain error because they were never presented to the district

court.    United States v. Hughes, 401 F.3d 540, 547 (4th Cir. 2005)

(citing Fed. R. Crim. P. 52(b); United States v. Olano, 507 U.S.

725, 731-32 (1993)).     To establish plain error, the defendant must

“show that an error occurred, that the error was plain, and that

the error affected his substantial rights.”            United States v.

White, 405 F.3d 208, 215 (4th Cir.) (citing Olano, 507 U.S. at

732), cert. denied, 125 S. Ct. 668 (2005); United States v. Evans,

405 F.3d 208, 215 (4th Cir. 2005).           Assuming that the defendant

satisfies    this   three-part   standard,    “correction   of   the   error

remains within our discretion, which we should not exercise . . .

unless the error seriously affect[s] the fairness, integrity or

public reputation of judicial proceedings.”          White, 405 F.3d at

215   (internal quotation marks and citations omitted).



                                    B.

      In Booker, the Supreme Court held that a Sixth Amendment

violation arises where the district court, acting pursuant to the

Sentencing Reform Act and the Guidelines, imposes a sentence that

is greater than the maximum authorized by the facts found by the

jury.    See Booker, 543 U.S. at 244.    On appeal, Jones contends that


                                    8
his sentence violates Booker based on three distinct enhancements

that increased his Guidelines range: (1) a five-level enhancement

for brandishing a firearm under § 2B3.1(b)(2)(C); (2) a two-level

enhancement because the bank robbery involved carjacking under §

2B3.1(b)(5);     and   (3)   a    two-level   enhancement   for   obstructing

justice under § 3C1.1.           In response, the government asserts that

each of the enhancements is supported either by the guilty plea or

the admitted facts.

      We easily conclude that Jones admitted the facts supporting

the first two enhancements.          First, Jones’s guilty plea to Count

Five, which charged him with using a handgun during the robbery,

constituted an admission of the facts underlying the firearm

brandishing enhancement.           Second, counsel’s representation that

“the general factual basis is correct,” J.A. 59, was the functional

equivalent of adopting the factual basis, which set forth the

predicate for the carjacking enhancement.             See United States v.

Buonocore, 416 F.3d 1124, 1134 (10th Cir. 2005) (defense counsel’s

assertion that the drug quantities set forth in the PSR were

“exactly correct” constituted an admission of those quantities for

the   purposes   of    sentencing).         Accordingly,   neither   of   these

enhancements required judicial factfinding in violation of the

Sixth Amendment.

      The third enhancement for obstruction of justice, however,

rested solely on facts contained in the PSR, to which Jones did not

                                        9
file formal objections.        During the sentencing hearing, counsel

reiterated that “we have no formal objections filed” in declining

to object to the PSR, J.A. 90, and also objected to “the government

presenting evidence that will contradict any aspect of the facts

set out in the presentence report without having time to file an

objection    to    them,”   J.A.   74   (emphasis    added).2        The    issue,

therefore, is whether these statements were admissions of the facts

contained in the PSR.

      In assessing whether a defendant’s statement qualifies as an

admission for Booker purposes, this Circuit recently recognized

that “verbalizations necessarily fall along a spectrum.”                    United

States v. Revels, 05-4142, slip-op. at 5 (4th Cir. May 1, 2006).

Revels thus explains that statements such as “I admit” settle at

one   end   as    clear   admissions    for   the   purposes    of    the   Sixth

Amendment.       Id.   At the opposite end of the spectrum is silence.

Id. at 6; see United States v. Milam, 2006 WL 871287, at *4 (4th

Cir. Apr. 6, 2006) (“To presume, infer, or deem a fact admitted

because the defendant has remained silent, however, is contrary to

the Sixth Amendment.” (internal citations omitted)) (holding that




      2
      It was Williams’s counsel who actually expressed the
objection “to the government presenting evidence that will
contradict any aspect of the facts set out in the presentence
report without having time to file an objection to them.” J.A. 74.
However, Jones’s counsel explicitly stated, “Your Honor, we would
also make that same objection.” J.A. 75.

                                        10
the defendant’s silence in failing to object to the PSR did not

constitute an admission of the facts contained in the PSR).

     Guided by Revels, we conclude that counsel’s statement that

“we have no formal objections filed” in declining to object to the

PSR is closer to silence.    See Revels, slip-op. at 6 (holding that

the defendant did not admit the facts in the PSR when he declined

to object to the PSR by stating “No, sir” and stated an objection

under Blakely v. Washington, 542 U.S. 296 (2004)).       Indeed, we

perceive no material difference between stating “no” and stating

“we have no formal objections filed” in response to a district

court’s queries regarding outstanding objections to the PSR.    Id.

at 6 n.1 (“To the extent that it is reasonable to hold the

defendant here to his ‘No, sir,’ it would have been no less

reasonable to hold the defendant in Milam to his silence.     But of

course Milam did not so hold.”).

     Similarly, counsel’s subsequent objection to the government’s

presentation of any surprise evidence contradicting the PSR’s

findings is far from being an express admission of the facts

contained in the PSR.     In substance, counsel’s statement was a

preemptive measure to prevent the government from inserting any

eleventh-hour factual allegations without providing Jones with an

opportunity to respond.     It is significant to note that Jones did

not seek to completely preclude the government from presenting new

evidence. Rather, counsel merely preserved his right to seek “time

                                  11
to file an objection” to belated allegations if the government

chose to present such evidence at the sentencing hearing.             J.A. 74

(emphasis added).        We therefore decline to construe counsel’s

objection as an admission of the facts contained in the PSR.

      Without any support in the guilty plea, factual basis, or

admissions made by Jones, the enhancement for obstruction of

justice thus rested solely on judicial factfinding.            Accordingly,

this enhancement violated the Sixth Amendment.                 Without this

enhancement, Jones would have been subject to a sentencing range of

87 to 108 months’ imprisonment for Count Five (and a statutory

consecutive term of imprisonment of 84 months for Count Three).

Here, however, the district court sentenced Jones to a term of

imprisonment of 120 months with respect to Count Five (and a term

of   imprisonment   of   84   months    with   respect   to   Count   Three).

Accordingly, we take judicial notice of the plain error under

Hughes, vacate the sentence, and remand for resentencing.             Hughes,

401 F.3d at 555-56.



                                                     VACATED AND REMANDED




                                       12
HAMILTON, Senior Circuit Judge, concurring in the judgment in part
and dissenting in part:

     For the reasons stated in the majority opinion, I agree that

Jones’s challenges to the brandishing and carjacking enhancements

lack merit.   However, the majority’s reasoning behind its decision

to vacate the obstruction enhancement is hopelessly flawed and, for

this reason, I dissent from the majority’s decision to remand for

resentencing.

     It is undisputed that the PSR sets forth sufficient facts

supporting the obstruction of justice enhancement.   At sentencing,

Jones affirmatively indicated that he had no objections to the

factual contents of the PSR.   He also objected to the government’s

presentation of any evidence that would have contradicted “any

aspect of the facts set out” in the PSR.

     In United States v. Milam, No. 04-4224, 2006 WL 871287 (4th

Cir. April 6, 2006), we held that a defendant’s failure to object

to a PSR’s factual findings does not constitute an admission of

those facts for purposes of the Sixth Amendment.     Id. at *5.   To

hold otherwise, we concluded, would allow the government to obtain

a conviction without proving all of a crime’s elements beyond a

reasonable doubt.   Id.

     In United States v. Revels, No. 05-4142 (4th Cir. May 1,

2006), we concluded that the defendant’s statement “No, sir” in

response to the district court’s inquiry as to whether he had any

objections to the PSR was not an admission for purposes of the

                                 13
Sixth Amendment.       Slip op. at 5.     In so concluding, we observed

that the defendant’s case in Revels fell “somewhere in the middle

of   the   spectrum”    between   Milam’s   silence   and   a   defendant’s

statement such as “‘I admit.’”       Id. at 4.

      In its opinion, the majority concludes that Jones’s case is

governed by Milam and Revels.        However, this case concerns much

more than a simple failure to object as in Milam or a simple “No,

sir” as in Revels.       Indeed, if all Jones did was simply remain

silent and/or indicate that he had no objections to the PSR’s

factual findings, then I would agree with the majority that this

case is controlled by Milam and Revels.       Critically, though, Jones

objected to any actions by the government which would have cast

doubt on the factual accuracy of the PSR.         By taking affirmative

steps to protect the sanctity of the PSR’s factual findings, Jones

unquestionably admitted those facts for Booker purposes.

      The majority downplays the significance of Jones’s objection

to the government’s presentation of facts that would contradict the

PSR’s factual findings, essentially describing the objection as a

sound trial strategy preventing Jones from being ambushed by the

government.    However, Jones’s objection cannot be written off so

easily. He objected only to a factual presentation that would have

contradicted the factual allegations of the PSR.            By taking the

affirmative step to prevent the PSR’s facts from being contradicted

(as opposed to supplemented), he has gone well beyond the mere “No,


                                     14
sir” that was present in Revels, moving the case from “somewhere in

the middle of the spectrum” to the “‘I admit’” realm.   Id. at 4-5.

     For these reasons, I dissent from the majority’s decision to

remand for resentencing.




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