UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-5005
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
WILLIAM SANFORD GADD,
Defendant - Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Bluefield. David A. Faber, Chief
District Judge. (CR-02-240)
Submitted: July 29, 2005 Decided: August 24, 2005
Before WILLIAMS and MOTZ, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Vacated and remanded in part by unpublished per curiam opinion.
Ward Morgan, Bluefield, West Virginia, for Appellant. Karen B.
George, OFFICE OF THE UNITED STATES ATTORNEY, Charleston, West
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
William Sanford Gadd appeals his 240-month sentence for
two counts of issuing false securities in the name of the United
States, in violation of 18 U.S.C. § 514 (2000), and two counts of
bankruptcy fraud, in violation of 18 U.S.C. §§ 152, 157 (2000).
Finding that the district court’s imposition of sentence violated
Gadd’s Sixth Amendment right to trial by a jury, we vacate the
sentence and grant the Government’s motion to remand for
resentencing.
Gadd first claims on appeal that the district court erred
in calculating the loss Gadd intended to inflict on the various
victims of his fraudulent schemes. Gadd claims that the district
court’s reliance on the face value of Gadd’s fraudulent demands
unreasonably exaggerated the loss because such a financial loss was
not economically feasible. We have specifically rejected this
claim under similar circumstances. See United States v. Miller,
316 F.3d 495, 499-502 (4th Cir. 2003). Accordingly, this claim is
meritless.
Gadd also claims that his sentence violated his Sixth
Amendment right to trial by a jury. Because we conclude that the
district court’s application of the Sentencing Guidelines enhanced
Gadd’s sentence on the basis of facts he did not admit and that
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were not found by a jury beyond a reasonable doubt, we agree.* See
United States v. Booker, 125 S. Ct. 738 (2005); United States v.
Hughes, 401 F.3d 540 (4th Cir. 2005). Accordingly, we vacate his
sentence and grant the Government’s motion to remand for
resentencing.
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.
*
Just as we noted in United States v. Hughes, 401 F.3d 540,
545 n.4 (4th Cir. 2005), “[w]e of course offer no criticism of the
district judge, who followed the law and procedure in effect at the
time” of Gadd’s sentencing. See generally Johnson v. United
States, 520 U.S. 461, 468 (1997) (stating that an error is “plain”
if “the law at the time of trial was settled and clearly contrary
to the law at the time of appeal”).
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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.
VACATED AND REMANDED IN PART
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