UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 03-4758
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
SAMUEL E. SAVILLA,
Defendant - Appellant.
On Remand from the United States Supreme Court.
(S. Ct. No. 04-7648)
Submitted: February 3, 2006 Decided: March 21, 2006
Before WILKINSON, LUTTIG, and GREGORY, Circuit Judges.
Affirmed in part; vacated and remanded in part by unpublished per
curiam opinion.
Mary Lou Newberger, Federal Public Defender, Edward H. Weis,
Assistant Federal Public Defender, Jonathan D. Byrne, Appellate
Counsel, Charleston, West Virginia, for Appellant. Kasey Warner,
United States Attorney, R. Booth Goodwin II, Assistant United
States Attorney, Charleston, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
This case is before us on remand from the United States
Supreme Court. We previously affirmed Samuel E. Savilla’s
conviction following a guilty plea for cultivating greater than
twenty marijuana plants in violation of 21 U.S.C. § 841 (2000), as
well as his resulting eighteen-month sentence. See United
States v. Savilla, No. 03-4758 (4th Cir. Sept. 9, 2004)
(unpublished). The Supreme Court vacated our decision and remanded
Savilla’s case for further consideration in light of United
States v. Booker, 125 S. Ct. 738 (2005).
A Sixth Amendment error occurs when a district court
imposes a sentence greater than the maximum permitted based on
facts found by a jury or admitted by the defendant. Booker, 125 S.
Ct. at 756. Because Savilla did not raise a Sixth Amendment
challenge or object to the mandatory application of the guidelines
in the district court, our review is for plain error. United
States v. Hughes, 401 F.3d 540, 547 (4th Cir. 2005).
Savilla’s plea supports a conclusion that he is
responsible for the cultivation of two kilograms of marijuana.
These facts correspond with an offense level of ten. See U.S.
Sentencing Guidelines Manual §§ 2D1.1(c)(15) (2003). Combined with
his criminal history category of one, this offense level yields a
sentencing range of six to twelve months’ imprisonment. See USSG
Ch. 5, Pt. A, table. Savilla’s sentence of eighteen months exceeds
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this range. Because this error affects Savilla’s substantial
rights, we conclude it is plainly erroneous.* See Hughes, 401 F.3d
at 547-48.
Accordingly, we vacate the sentence imposed by the
district court and remand for resentencing in accordance with
Booker. 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 United States v. Hughes, 401 F.3d 540, 546 (4th
Cir. 2005) (applying Booker on plain error review). 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. We affirm Savilla’s conviction for the reasons
*
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 Savilla’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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stated in our prior opinion of September 9, 2004. 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
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