UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4802
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
GEORGE MONK,
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-03-407)
Submitted: September 9, 2005 Decided: September 30, 2005
Before WILLIAMS, TRAXLER, and KING, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
Louis C. Allen, III, Federal Public Defender, Eric D. Placke,
Assistant Federal Public Defender, Greensboro, North Carolina, for
Appellant. Anna Mills Wagoner, United States Attorney, L. Patrick
Auld, Assistant United States Attorney, Deputy Chief, Criminal
Division, OFFICE OF THE UNITED STATES ATTORNEY, Greensboro, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
George Monk was indicted for conspiracy to defraud
mortgage lenders and various related substantive counts. He pled
guilty to wire fraud, in violation of 18 U.S.C. § 1343 (2000), and
money laundering, in violation of 18 U.S.C. § 1956(a)(1)(A)(i)
(2000). The district court sentenced him under the federal
sentencing guidelines to eighty-seven months in prison. Monk
appeals his sentence, arguing that his sentence was imposed in
violation of the Sixth Amendment. We vacate the sentence and
remand for resentencing.
Monk contends that his sentence is unconstitutional
because it was enhanced based on the district court’s findings as
to the scope of the entire conspiracy, rather than the specific
conduct that Monk admitted. Specifically, Monk objects to the
district court’s conclusions that he was responsible for over
$1,000,000 in losses, that there were more than ten victims, and
that the crucial date for certain criminal history calculations is
the date the conspiracy allegedly began, rather than June 2001,
when he committed the offenses of conviction. Because Monk raised
this claim in the district court, our review is de novo. See
United States v. Mackins, 315 F.3d 399, 405 (4th Cir. 2003).
The court’s findings with respect to amount of loss alone
increased Monk’s sentencing range dramatically over the sentence
that could have been imposed based upon the facts admitted by Monk.
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The district court thus erred in basing Monk’s sentence on judge-
found facts under a mandatory guideline regime. See United
States v. Booker, 125 S. Ct. 738, 756-57 (2005). Because Monk’s
sentence was significantly longer than that which could have been
imposed based upon the facts that he admitted, the error affected
his substantial rights, and resentencing is required.*
On remand, the district court should first determine the
appropriate sentencing range under the guidelines, making all the
factual findings appropriate for that determination. See United
States v. Hughes 401 F.3d 540, 546 (4th Cir. 2005). The court
should consider this range, along with the other factors identified
at 18 U.S.C. § 3553(a) (2000), and then impose sentence. See 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). See id. The sentence must be “within the
statutorily prescribed range and . . . reasonable.” See id. at
546-47.
We therefore vacate Monk’s sentence and remand for
resentencing. We dispense with oral argument because the facts and
*
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”
sentencing.
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legal contentions are adequately presented in the materials before
the court and argument would not aid the decisional process.
VACATED AND REMANDED
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