                             UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                             No. 05-5276



UNITED STATES OF AMERICA,

                                               Plaintiff - Appellant,

           versus


JAMAR DEVENZIO ROBINSON,

                                                Defendant - Appellee.



Appeal from the United States District Court for the District of
South Carolina, at Rock Hill.     Matthew J. Perry, Jr., Senior
District Judge. (CR-04-875)


Argued:   October 26, 2006                 Decided:   January 11, 2007


Before TRAXLER, GREGORY, and SHEDD, Circuit Judges.


Vacated and remanded by unpublished opinion. Judge Traxler wrote
the opinion for the court.      Judge Gregory wrote an opinion
concurring in the result. Judge Shedd wrote an opinion concurring
in the result.


ARGUED: Stanley D. Ragsdale, Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Columbia, South Carolina, for
Appellant. Robert E. Hood, STROM LAW FIRM, L.L.C., Columbia, South
Carolina, for Appellee. ON BRIEF: Reginald I. Lloyd, United States
Attorney, Columbia, South Carolina, for Appellant.


Unpublished opinions are not binding precedent in this circuit.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

     Jamar      Devenzio   Robinson      pled   guilty    to    conspiracy    to

distribute, and to possess with intent to distribute, 50 grams or

more of crack cocaine, and 5 kilograms or more of cocaine, in

violation of 21 U.S.C.A. § 846 (West 1999).              Although the charges

carried a mandatory minimum sentence of ten years, see 21 U.S.C.A.

§ 841(b)(1)(A)(iii) (West 1999), the district court imposed a

sentence   of    60   months   imprisonment.    The    government      appealed,

arguing that the sentence is unreasonable under United States v.

Booker, 543 U.S. 220 (2005).          For the following reasons, we vacate

the sentence and remand for resentencing.



                                        I.

     The district court held a sentencing hearing on December 1,

2005.   The presentence report (“PSR”) determined Robinson’s total

offense level to be 37, which included a two-level role-in-the-

offense    enhancement.     The   enhancement    was   based    on     Robinson’s

statement to the FBI that he supervised two other people in his

drug distribution activities.          See U.S.S.G. § 3B1.1(c) (increasing

the defendant’s total offense level by two levels if “based on the

defendant’s role in the offense, . . . the defendant was an

organizer,      leader,    manager,    or    supervisor    in    any     criminal

activity”); U.S.S.G. § 3B1.1, comment. (n.2) (“To qualify for an

adjustment under this section, the defendant must have been the


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organizer, leader, manager, or supervisor of one or more other

participants.”).

     The district court considered the pertinent part of the PSR,

which recounted statements Robinson gave to the FBI indicating he

had two people selling crack for him.             J.A. 90.    While Robinson did

not contest the accuracy of this part of the PSR, he disputed that

it could serve as a basis for the role enhancement.                        Robinson

argued   that   the   statement   did       not   establish    that   he    was   an

organizer, supervisor, or leader because the statement did not

indicate evidence of decision-making, recruitment, a right to a

larger share of the fruits of the crime, or any authority or

control over others.       The government countered that Robinson’s

statement amounted to an admission of leadership over two other

individuals, thus satisfying the requirement for the leadership

enhancement.

     After considering the arguments of counsel, the district court

declined to impose the role enhancement on grounds that had not

been raised.     Concluding that the language of the indictment did

not explicitly charge Robinson with being a leader or organizer and

that the jury did not find that role, the district court sustained

the objection and declined to apply the leadership enhancement.

J.A. 56-57.     Having concluded that the leadership enhancement did

not apply, the court held that Robinson qualified for the safety

valve provisions of the guidelines, which permitted the district


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court to sentence Robinson below the mandatory minimum of ten

years.   See U.S.S.G. § 5C1.2.           The district court imposed a

sentence of 60 months imprisonment.



                                  II.

     In Apprendi v. New Jersey, 530 U.S. 466 (2000), the Supreme

Court held 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.”   Id.   at   490.     Thereafter,   in   Blakely   v.

Washington, 542 U.S. 296 (2004), the Supreme Court held that

     the ‘statutory maximum’ for Apprendi purposes is the
     maximum sentence a judge may impose solely on the basis
     of the facts reflected in the jury verdict or admitted by
     the defendant. In other words, the relevant ‘statutory
     maximum’ is not the maximum sentence a judge may impose
     after finding additional facts, but the maximum he may
     impose without any additional findings.

Id. at 303-04 (citations omitted). Because of the similarities

between the sentencing scheme at issue in Blakely and the Federal

Sentencing Guidelines, questions about the constitutionality of the

guidelines arose.   While some courts concluded that the guidelines

were unaffected by Blakely, see, e.g., United States v. Hammoud,

381 F.3d 316, 353 (4th Cir. 2004) (en banc), vacated 543 U.S. 1097

(2005), others concluded that no guideline enhancements could be

applied unless the facts supporting the enhancement were alleged in

the indictment and found by the jury, see, e.g., United States v.


                                   4
Fanfan, 2004 U.S. Dist. LEXIS 18593 (D.               Me. 2004).    Thus, in the

uncertainty between Blakely and Booker, it was reasonable to assume

that enhancements, other than prior conviction enhancements, had to

be   pled    in    the    indictment   and      the   facts   supporting    those

enhancements found by the jury beyond a reasonable doubt.

     The Supreme Court resolved this issue with its opinion in

Booker.     The Supreme Court applied Blakely to the guidelines and

concluded that “the Sixth Amendment is violated when a district

court,    acting    pursuant   to   the       Sentencing   Reform   Act   and   the

guidelines, imposes a sentence greater than the maximum authorized

by the facts found by the jury alone.”                United States v. Hughes,

401 F.3d 540, 546 (4th Cir. 2005) (citing Booker, 543 U.S. at 244).

The Supreme Court remedied the constitutional violation by excising

the mandatory language from the sentencing guidelines, so that “the

discretion of a sentencing court is no longer bound by the range

prescribed    by    the   guidelines.”          Id.   Because   the   sentencing

guidelines are now advisory post Booker, it is clear that the facts

supporting a sentencing enhancement need not be alleged in the

indictments to be used in the proper calculation of a defendant’s

sentence.    See Booker, 543 U.S. at 233, 259.

     In the wake of Booker, the district court when sentencing a

criminal defendant must:

     (1) properly calculate the sentence range recommended by
     the Sentencing Guidelines; (2) determine whether a
     sentence within that range and within statutory limits
     serves the factors set forth in § 3553(a) and, if not,

                                          5
      select a sentence that does serve those factors; (3)
      implement mandatory statutory limitations; and (4)
      articulate the reasons for selecting the particular
      sentence, especially explaining why a sentence outside of
      the Sentencing Guidelines range better serves the
      relevant sentencing purposes set forth in § 3553(a).

United States v. Green, 436 F.3d 449, 456 (4th Cir.) (footnote

omitted), cert. denied, 126 S. Ct. 2309 (2006).                    We review the

district court’s legal conclusions de novo and its findings of fact

for clear error.        See id.

      The government argues, and Robinson concedes, that the absence

of   any   leadership     facts   in   the    indictment    does   not   preclude

application    of   a    leadership    enhancement    when     calculating   the

advisory guidelines sentencing range.            We agree.     Accordingly, we

vacate the sentence and remand for further proceedings consistent

with this opinion.



                                       III.

      Based on the foregoing, we vacate Robinson’s sentence and

remand this case for resentencing.



                                                           VACATED AND REMANDED




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GREGORY, Circuit Judge, concurring:

     I agree that the district court must resentence Robinson

because United States v. Booker, 543 U.S. 220 (2005), does not

require a sentencing enhancement to be alleged in the indictment.

I write to emphasize that, notwithstanding the error in sentencing,

this Court does not resolve the question concerning applicability

of the leadership enhancement. It is the district court’s province

to decide, at the resentencing hearing, whether the United States

has proven by a preponderance of the evidence that Robinson acted

in such a leadership capacity as to warrant the application of the

two-level leadership enhancement.




                                7
SHEDD, Circuit Judge, concurring:

       I agree that the district court erred and that Robinson must

be resentenced because of this error.        I write separately to note

that at the time of the sentencing, United States v. Booker, 543

U.S.    220   (2005),   had   (as   Judge   Traxler   explains)   clearly

established “that the facts supporting a sentencing enhancement

need not be alleged in the indictments to be used in the proper

calculation of a defendant’s sentence.”        Therefore, regardless of

the reasonableness of any pre-Booker assumption on this point,

there was no basis for the district court’s contrary sua sponte

ruling in this case.




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