                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 08-4837


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

IRA TAYLOR,

                Defendant - Appellant.



Appeal from the United States District Court for the District of
Maryland, at Baltimore.    Richard D. Bennett, District Judge.
(1:07-cr-00587-RDB-1)


Argued:   December 4, 2009                 Decided:   March 2, 2010


Before NIEMEYER, MICHAEL, and GREGORY, Circuit Judges.


Affirmed by unpublished opinion.      Judge Niemeyer wrote      the
opinion, in which Judge Michael and Judge Gregory joined.


ARGUED: David Warren Lease, SMITH, LEASE & GOLDSTEIN, LLC,
Rockville, Maryland, for Appellant.    Jonathan Biran, OFFICE OF
THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee.
ON BRIEF: Rod J. Rosenstein, United States Attorney, Traci L.
Robinson, Assistant United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Baltimore, Maryland, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
NIEMEYER, Circuit Judge:

      Ira    Taylor      pleaded       guilty      to     a    violation          of       18   U.S.C.

§ 922(g)(1) (unlawful possession of a firearm by a convicted

felon)   pursuant        to   a   plea    agreement           in     which   the           government

stipulated to the Sentencing Guidelines’ base offense level and

agreed      to    recommend       a    sentence         within        the    final           advisory

Guidelines range, which the presentence report calculated at 30

to 37 months’ imprisonment.               The district court, however, found

as a fact of relevant conduct that Taylor had participated in

attempted        first-degree         murder       and,       based     on    that          finding,

recomputed       Taylor’s     advisory     Guidelines               range    at    120          months’

imprisonment.            Following       Taylor’s             request       for        a    variance

sentence,        based   on   the     factors       in    18        U.S.C.   § 3553(a),             the

district court sentenced Taylor to 78 months’ imprisonment.

      On appeal, Taylor argues (1) that the government breached

the   plea       agreement    by      alluding       to       and    presenting             facts    of

relevant conduct and thereby attempting an “end-run” around its

obligations in the plea agreement, and (2) that the district

court effectively found Taylor guilty of attempted first-degree

murder without submitting the issue to a jury, in violation of

his Fifth and Sixth Amendment rights.

      We reject Taylor’s arguments and affirm.




                                               2
                                               I

      When Taylor was arrested in Baltimore, Maryland, on May 17,

2006, on two state warrants for two separate attempts of first-

degree    murder         and   related    offenses,      he    was   found       to   be    in

possession of a loaded .38 caliber handgun.                       Because Taylor had

previously been convicted of a felony, he was prosecuted in this

action for unlawful possession of a firearm, in violation of 18

U.S.C. § 922(g)(1).             Pursuant to a plea agreement, he pleaded

guilty to the firearms charge, expecting to receive a sentence

in the range of 30 to 37 months’ imprisonment, based on the

government’s stipulations and agreements.

      In the plea agreement, the government stipulated to a base

offense level of 20 and a reduction of that offense level of up

to    3   levels         for   acceptance      of     responsibility,        subject        to

specified conditions not relevant here.                     The agreement indicated

that the parties had made no agreement as to Taylor’s criminal

history or his criminal history category.                         The parties agreed

that “with respect to the calculation of the advisory guidelines

range, no other offense characteristics, Sentencing Guidelines

factors, or potential departures or adjustments . . . will be

raised    or       are    in    dispute,”      and    the     government         agreed     to

recommend      a     sentence      within      the    “final     advisory         guideline

range.”     But each of the parties reserved the right “to bring to

the   Court’s       attention     at     the   time    of     sentencing     .    .   .    all

                                               3
relevant      information         concerning          the     Defendant’s        background,

character and conduct.”

      The     plea    agreement         included       the    parties’     acknowledgment

that neither the court nor the probation office was bound by the

plea agreement and that “the Court is under no obligation to

accept [the government’s] recommendations, and the Court has the

power to impose a sentence up to and including the statutory

maximum stated above [10 years’ imprisonment].”

      In    the    presentence          report       that    followed,     the     probation

officer recommended a base offense level of 20 and a 3-level

downward      adjustment         for    acceptance       of    responsibility,         for     a

total offense level of 17.                   In view of Taylor’s two prior drug

convictions,         he    fell       within    criminal       history     Category         III,

yielding      an   advisory           Guidelines      range    of    30    to    37   months’

imprisonment.         The presentence report also reported that Taylor

had three juvenile delinquency adjudications involving drugs and

guns and six arrests for drug and gun violations, for which he

was not prosecuted.             Among the six arrests was the arrest on May

17,   2006,    made       on    warrants       charging      him    with   two    counts     of

attempted      first-degree            murder    and    related       offenses.           Those

charges,      however,         were    not     prosecuted      by   the    State      and   the

docket was marked “nolle prosequi.”

      Taylor       filed       objections       to    the     presentence        report     and

requested a downward departure under U.S.S.G. § 4A1.3(b) based

                                                4
on   his    claim    that    his        criminal     history       Category      III     over-

represented        the     seriousness         of    his        criminal     history      and

likelihood of recidivism.                The government submitted a memorandum

in   opposition,         arguing    that,      if    anything,         Taylor’s    criminal

history category under-represented Taylor’s dangerousness.                                The

government pointed to the arrest for two attempted first-degree

murder     charges,       which,    although         not    prosecuted,       involved      a

shooting of James Irving on April 2, 2006, and the shooting of

Montay     Powell    on    May     1,    2006.       The    government’s         memorandum

stated that Irving identified Taylor as the man who had shot

him, that several eye witnesses identified Taylor as the man who

had shot Powell, and that the government intended to present

evidence at sentencing to prove Taylor’s conduct.                              In view of

this criminal history, the government recommended a sentence at

the high end of the 30-37 month Guidelines range.

      Taylor    replied      to    the     government’s          memorandum,      asserting

that the government’s argument for a high sentence based on the

attempted      murders      was     unfounded.             He    complained       that    the

government     was    attempting         to    try   Taylor      for    crimes    that    had

never been proved against him beyond a reasonable doubt.                               Taylor

concluded     by     reiterating         his   request      that       the   court     depart

downwardly as his criminal history category over-represented his

actual criminal history.



                                               5
      At the first sentencing hearing held on May 30, 2008, the

district court stated, in light of the conduct alluded to by the

government in its sentencing memorandum, that if it determined

that Taylor had in fact shot either Irving or Powell, it would

consider an upward departure under the Sentencing Guidelines or

an increased variance sentence pursuant to 18 U.S.C. § 3553(a).

It admonished Taylor that the court could impose a sentence of

up   to   the    maximum     of   10   years’      imprisonment.        At    Taylor’s

request, the court granted Taylor a continuance to allow him to

prepare a response to the court’s observations.

      At the second sentencing hearing held on July 24, 2008, the

court     granted   Taylor’s      motion     to    exclude    evidence       about   the

Powell shooting inasmuch as Powell had, in the interim, been

murdered and there would be no direct evidence about the earlier

shooting.       The court, however, denied Taylor’s motion to exclude

evidence of the Irving shooting, as the government was prepared

to   present     the    testimony      of   Irving    himself,     as    well    as    a

Baltimore City detective.

        After hearing the testimony and Taylor’s cross-examination

of the witnesses, the court pointed out that the standard for

judicial factfinding at sentencing was the preponderance-of-the-

evidence standard, even in the aftermath of United States v.

Booker, 543 U.S. 220 (2005).                    After receiving arguments from

counsel     about      the   evidence,      the    district    court     found       that

                                            6
Irving’s       testimony      was    credible      and   that       the    evidence      that

Taylor had shot Irving was clear and convincing, a standard that

the court applied out of “an abundance of caution.”                                Based on

that    finding,        the    court       recalculated       Taylor’s       Guidelines’

offense      level,     considering         the    Irving     shooting      as     relevant

conduct and applying cross-references to the attempted murder

Guidelines.       The recomputation resulted in an offense level of

33, which, when combined with Taylor’s criminal history Category

III, yielded a Sentencing Guidelines range of 168 to 210 months’

imprisonment.           Inasmuch       as    the      statutory      maximum       for      the

§ 922(g)(1) offense was 120 months’ imprisonment, the court held

that a 120-month sentence was the proper Guidelines range.                                  See

U.S.S.G. § 5G1.1(a).

       The     court     then        invited       arguments        from     counsel         on

application      of    the    §     3553    factors    and    on    what    sentence        was

appropriate.          The government again argued for a sentence at the

high end of the Guidelines range calculated under the original

plea    agreement’s        stipulated        offense     level,      i.e.,       30    to   37

months’ imprisonment.               It reiterated that its presentation of

facts about the attempted murder of Irving “was only really in

response to defense counsel’s motion that the criminal history

was    overrepresented.”             The    government       made    no    other      request

based     on    the    court’s       newly     recalculated         Guidelines        range,

stating instead, “[W]e just seek a sentence at the high end of

                                              7
the Guidelines and we will leave it at that.”                                   Counsel for

Taylor   requested        a    sentence      at    the   low   end      of   the       original

advisory Guidelines range.                  When the court retorted that the

Guidelines      range          was     recalculated          to      be      120        months’

imprisonment, Taylor’s counsel proposed that the court sentence

Taylor to 60 months’ imprisonment.

     After     considering           the    Guidelines       range,       the      §    3553(a)

factors,     and    the       arguments      of     counsel,      the     district       court

sentenced Taylor to 78 months’ imprisonment.

     Taylor filed this appeal, contending that the government

breached the plea agreement and that the district court denied

Taylor   his   constitutional              rights    under     the      Fifth      and   Sixth

Amendments in finding that Taylor shot Irving.


                                             II

     Taylor        claims      that    the        government      breached         the    plea

agreement by alluding to evidence of the two attempted murders

in its sentencing memorandum and by presenting evidence on the

Irving shooting.       He reasons:

     The trial court used this allegation of attempted
     murder as “relevant conduct” under U.S.S.G. § 1B1.3 to
     significantly increase Mr. Taylor’s offense guideline
     calculation.       Consequently,    the    Government’s
     introduction  of   this  alleged   “relevant   conduct”
     constituted nothing but a “thinly veiled end-run”
     around the Government’s previous agreement to a
     particular offense guideline calculation in the plea
     agreement.


                                              8
In support, Taylor cites United States v. Bowe, 257 F.3d 336,

345-46    (4th    Cir.      2001),     where     we    held    that    the    defendant’s

introduction and then withdrawal of evidence prohibited by a

plea     agreement       was     “a   thinly      veiled       end-run       around”       the

defendant’s obligations in the plea agreement not to introduce

such evidence.

       Because Taylor did not raise this breach-of-plea agreement

claim below, we review it now for plain error.                         For an appellate

court to notice plain error, “[t]here must be an ‘error’ that is

‘plain’ and that ‘affect[s] substantial rights.’                         Moreover, Rule

52(b) leaves the decision to correct the forfeited error within

the sound discretion of the court of appeals, and the court

should not exercise that discretion unless the error ‘seriously

affect[s]       the     fairness,      integrity        or    public     reputation        of

judicial proceedings.’”               United States v. Olano, 507 U.S. 725,

732    (1993)    (quoting       United     States      v.    Young,    470    U.S.    1,    15

(1985) (in turn quoting United States v. Atkinson, 297 U.S. 157,

160 (1936))).

       Taylor’s argument focuses primarily on paragraph 8 of the

plea agreement, which obligates the government to abstain from

introducing       any    evidence      beyond         that    stipulated      to     in    the

agreement       concerning       relevant      offense       conduct    and    Guidelines

factors.     But this argument focuses too narrowly, ignoring other

provisions       of   the      agreement    that       authorize      both    parties       to

                                             9
dispute Taylor’s criminal history and that, in paragraph 10,

authorize       the   government       to     offer      evidence        concerning    the

defendant’s “background, character and conduct.”                            His argument

also    fails    to    recognize       that       the   evidence     offered     by    the

government was properly responsive to Taylor’s own argument that

his criminal history Category III over-represented his criminal

history.

       The   plain     language        of     the       agreement        authorizes    the

government      to    introduce       evidence       both     on   Taylor’s     criminal

history and on his “background, character and conduct.”                                The

government did not, as Taylor contends, introduce the evidence

of the Irving shooting to make an argument for a different base

offense level from that stipulated to in the agreement or to

introduce Guidelines factors forbidden by paragraph 8.                           Indeed,

throughout the proceedings -- even after the court recalculated

the    Guidelines      range     at     120       months’     imprisonment       --    the

government continued to recommend that Taylor be sentenced in

the range of 30 to 37 months’ imprisonment, consistent with its

stipulation and agreement.

       The government only brought up the fact of the shootings to

respond to Taylor’s assertion that his criminal history category

over-represented       his     criminal       history       and    his    dangerousness.

Moreover, Taylor’s criminal history was, in any event, fair game

for    the   parties,     as    they        agreed      not   to    stipulate     to    an

                                             10
appropriate criminal history or criminal history category.                                In

alluding to the shootings, the government focused specifically

on   rebutting       Taylor’s     contention          about    his    criminal     history,

asserting that, if anything, Taylor’s criminal history Category

III understated his criminal history and dangerousness.                             Yet, in

making this argument, the government continued to recommend a

sentence at the top end of the originally calculated Guidelines

range of 30 to 37 months’ imprisonment.

      Finally,       even    after       the        district      court,     on    its   own

initiative, recalculated Taylor’s offense level and Guidelines

range   at     120    months’      imprisonment,           the    government       did   not

recommend a sentence within that range -- as the plea agreement

authorized it to do -- but continued to recommend a sentence at

the high end of the original guideline range of 30 to 37 months’

imprisonment.

      Accordingly,          we     reject       Taylor’s          argument        that   the

government breached the plea agreement.                          See United States v.

Fentress,      792    F.2d       461,    464        (4th   Cir.      1986)   (“While     the

government must be held to the promises it made, it will not be

bound to those it did not make”).


                                            III

      Taylor    also    makes      two    interrelated           arguments    challenging

the district court’s factfinding during sentencing regarding the


                                               11
attempted-murder conduct.               First, he urges this court to reverse

based on the position taken by Justice Scalia in his concurrence

in Rita v. United States, 127 S. Ct. 2456, 2478 (2007) (Scalia,

J., concurring in part and concurring in the judgment), where he

commented      that     in     reviewing          a     sentence          for     substantive

reasonableness, certain critical facts that are necessary for an

in-guidelines sentence to be lawful must be found by a jury

beyond a reasonable doubt, as distinguished from other facts

that a sentencing court may choose to consider in exercising its

discretion,     which    may       be    found        by     a    preponderance         of     the

evidence.      Taylor thus contends that because his sentence would

have    been   substantively            unreasonable             but     for    the    judicial

factfinding determining that he had committed attempted murder,

the fact of the attempted murder needed to be found by a jury

beyond a reasonable doubt.               He maintains that such “as-applied”

challenges to the constitutionality of judicial factfinding were

not foreclosed by Rita.

       This argument, however, fails to account for numerous post-

Booker and post-Rita opinions permitting a sentencing court to

consider during sentencing uncharged or even acquitted criminal

conduct     when   the       facts      of   that          conduct       are    found     by    a

preponderance      of   the    evidence.              See,       e.g.,   United       States    v.

Grubbs, 585 F.3d 793, 799 (4th Cir. 2009) (holding that, for

sentencing     purposes,       a   court     may       consider          uncharged      conduct

                                             12
found    by    a    preponderance          of   the      evidence);          United        States    v.

Benkahla, 530 F.3d 300, 312 (4th Cir. 2008) (holding that, so

long     as    the     Guidelines          range        is     treated         as     advisory,       a

sentencing court may consider and find facts by a preponderance

of the evidence, provided that those facts do not increase a

sentence      beyond       the   statutory          maximum).            The      same     reasoning

answers       Taylor’s      argument        that     he       had   a    right       to    have     the

attempted      murder       finding     made       by     a    jury     beyond       a    reasonable

doubt.

       Taylor       also    makes      a     more       general         contention         that     the

district      court    effectively           convicted         him      of   attempted        murder

without the benefit of a jury and proof beyond a reasonable

doubt, in violation of his rights under the Fifth and Sixth

Amendments.

       This argument, which is similar to his first argument, has

been specifically rejected by us numerous times.                                    So long as the

district       court       sentences        a   defendant           within          the    statutory

maximum authorized            by   the      jury     findings           or   guilty        plea,    the

court can consider facts that it finds by a preponderance of the

evidence       to     exercise         its      discretion              in   determining            the

appropriate sentence within that maximum.                               See, e.g., Benkahla,

530 F.3d. at 512; United States v. Battle, 499 F.3d 315, 322-23

(4th Cir. 2007).            Here, Taylor pleaded guilty to a violation of

§   922(g)(1),         with        a       maximum        sentence           of      120     months’

                                                13
imprisonment,   and   the   district     court   appropriately   imposed    a

sentence of 78 months’ imprisonment, within the maximum, based

on   facts   that   the   court   found    by    a   preponderance   of   the

evidence, indeed by clear and convincing evidence.

     For the foregoing reasons, we affirm the judgment of the

district court.

                                                                     AFFIRMED




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