UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4959
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ROBERT EDWARD SILLS, a/k/a Bobby,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Jerome B. Friedman, District
Judge. (CR-03-148)
Submitted: July 15, 2005 Decided: August 3, 2005
Before MOTZ, GREGORY, and SHEDD, Circuit Judges.
Affirmed in part; vacated and remanded in part by unpublished per
curiam opinion.
Jesse Edgar Demps, Portsmouth, Virginia, for Appellant. Laura
Marie Everhart, Assistant United States Attorney, Norfolk,
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Robert Edward Sills appeals his sentence of 235 months’
imprisonment for a conviction following his guilty plea to one
count of conspiracy to distribute and possess with intent to
distribute cocaine and cocaine base in violation of 21 U.S.C. § 846
(2000). Sills’ attorney filed a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), stating that he has reviewed the
record and has not found any meritorious grounds for appeal. In
his Anders brief, Sills’ counsel raised one issue related to the
calculation of Sills’ sentence: that the court violated Sills’ due
process rights in calculating his sentence based upon a large
quantity of drugs improperly attributed to him. Although informed
of his right to do so, Sills has not filed a pro se supplemental
brief.
In accordance with the requirements of Anders, we have
reviewed the entire record in this case, and we have found a
meritorious ground for appeal: that Sills’ sentence violated the
rule announced in United States v. Booker, 125 S. Ct. 738 (2005).
In United States v. Hughes, 401 F.3d 540, 547 (4th Cir. 2005), we
held that when a sentence calculated under the Sentencing
Guidelines exceeds the maximum sentence authorized by facts found
by the jury alone or admitted by the defendant, the defendant could
demonstrate plain error that warranted resentencing under Booker.
Because it is undisputed that the district court made factual
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determinations beyond facts Sills admitted that increased his
sentence, we find plain error occurred and that Sills is entitled
to resentencing.1 Accordingly, we affirm Sills’ conviction but
vacate his sentence and remand for resentencing “consistent with
the remedial scheme set forth in Justice Breyer’s opinion for the
Court in Booker.”2 Id. at 544.
We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials before
the court and argument would not aid the decisional process.
AFFIRMED IN PART;
VACATED AND REMANDED IN PART
1
Just as we noted in United States v. Hughes, 401 F.3d 540,
545 n.4 (4th Cir. 2005), “we of course offer no criticism of the
district judge, who followed the law and procedure in effect at the
time” of Sills’ sentencing.
2
Although the Sentencing Guidelines are no longer mandatory,
Booker makes clear that a sentencing court must still “consult
[the] Guidelines and take them into account when sentencing.” 125
S. Ct. at 767. On remand, the district court should first
determine the appropriate sentencing range under the Guidelines,
making all factual findings appropriate for that determination.
See Hughes, 401 F.3d at 546. The court should consider this
sentencing range along with the other factors described in 18
U.S.C. § 3553(a) (2000), and then impose a sentence. Id. If that
sentence falls outside the Guidelines range, the court should
explain its reasons for the departure as required by 18 U.S.C.
§ 3553(c)(2)(2000). Id. The sentence must be “within the
statutorily prescribed range . . . and reasonable.” Id. at 546-47.
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