UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4404
UNITED STATES OF AMERICA,
Plaintiff - Appellant,
versus
ANTHONY WAYNE SILVER,
Defendant - Appellee.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. W. Earl Britt, Senior
District Judge. (CR-04-62)
Submitted: March 3, 2006 Decided: April 20, 2006
Before WIDENER and TRAXLER, Circuit Judges, and Cameron McGowan
CURRIE, United States District Judge for the District of South
Carolina, sitting by designation.
Vacated and remanded by unpublished per curiam opinion.
Frank D. Whitney, United States Attorney, Anne M. Hayes, Assistant
United States Attorney, Eric D. Goulian, Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North
Carolina, for Appellant. C. Douglas Fisher, Hillsborough, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Anthony Wayne Silver was convicted of conspiracy to distribute
and possess with intent to distribute more than 50 grams of cocaine
base. See 21 U.S.C.A. §§ 841(a), 846 (West 1999). The Presentence
Investigation Report (PSR) determined that Silver should be held
responsible for 2.143 kilograms of cocaine base distributed as part
of the conspiracy, based in part upon information from witnesses
who did not testify at trial. This recommended amount yielded a
base offense level of 38. See U.S.S.G. § 2D1.1(c)(1). The PSR
also recommended that the sentencing court impose a two-level
firearm enhancement, see U.S.S.G. § 2D1.1(b)(1), and reject a
downward adjustment for acceptance of responsibility, see U.S.S.G.
§ 3E1.1(a). Accordingly, the total offense level assigned by the
PSR was 40. After determining that Silver’s criminal history
placed him in category I, the PSR arrived at a recommended
sentencing range of 292 to 365 months.
The district court concluded that under United States v.
Booker, 543 U.S. 220 (2005), Silver’s “base offense level may not
be based on any facts not found specifically by the jury,” J.A.
156, and determined that the appropriate base offense level was 32,
which is prescribed by the “guidelines for possession with intent
to distribute more than [50 grams of] cocaine base.” J.A. 156.
Essentially, the district court read Booker as precluding it from
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considering, for sentencing purposes, any facts not specifically
presented to and found by the jury.
The district court also determined, contrary to the
recommendation of the PSR, that a two-level downward adjustment for
acceptance of responsibility was appropriate even though Silver
pled not guilty and testified at trial that he did not sell crack
to various witnesses who claimed that they made purchases from him.
After adopting the two-level firearm enhancement, the district
court arrived at a total offense level of 32, yielding a sentencing
range of 121 to 151 months, and imposed a low-end sentence of 121
months.
The Government appeals, arguing that the district court
erroneously determined that it could not consider, for purposes of
determining the appropriate offense level, “any facts not found
specifically by the jury.” J.A. 156. In Booker, the United States
Supreme Court held that the mandatory application of the Sentencing
Guidelines to enhance a defendant’s sentence based on the
sentencing court’s factual determinations offends the Sixth
Amendment. See Booker, 543 U.S. at 226-30, 243-46. Therefore,
Booker severed and excised the statutory provisions mandating the
application of the Guidelines; however, Booker clearly requires
sentencing courts to continue to “consult [the] Guidelines and take
them into account when sentencing,” despite the now-advisory nature
of the Sentencing Guidelines. Id. at 264.
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In United States v. Hughes, 401 F.3d 540 (4th Cir. 2005),
which was decided after the sentencing hearing in this case, we
outlined the procedure that sentencing courts in this circuit
should follow in light of Booker. First, the sentencing court must
“calculate (after making the appropriate findings of fact) the
range prescribed by the guidelines.” Id. at 546 (emphasis added).
Next, the court must consider whether a sentence within the
advisory guideline range “serves the factors set forth in § 3553(a)
and, if not, select a sentence that does serve those factors.”
United States v. Green, 436 F.3d 449, 456 (4th Cir. 2006). In
turn, to select a sentence that serves the § 3553(a) factors, the
sentencing court “should first look to whether a departure is
appropriate based on the Guidelines” and, “[i]f an appropriate
basis for departure exists, the district court may depart.” United
States v. Moreland, 437 F.3d 424, 432 (4th Cir. 2006). “If the
resulting departure range still does not serve the factors set
forth in § 3553(a), the court may then elect to impose a non-
guideline sentence (a ‘variance sentence’).” Id. Regardless of
the sentence ultimately imposed, the district court must explain
its reasons for choosing a given sentence, especially if a
departure or variance is involved. See id.; Hughes, 401 F.3d at
546 & n.5.
Because Booker does not preclude a sentencing court’s
consideration of facts not specifically found by the jury, we
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vacate Silver’s sentence and remand for resentencing. On remand,
the district court should first calculate, based upon its own
findings of fact, the appropriate sentencing range pursuant to the
Guidelines. The court should then proceed to determine whether a
sentence within the advisory Guideline range satisfies the factors
set forth in 18 U.S.C.A. § 3553(a), as explained in Hughes, and our
recent decisions in Green and Moreland.
In view of our conclusion that Silver must be resentenced in
accordance with the procedures identified above, we need not decide
the other issue raised by the Government -- whether the district
court lacked a sufficient basis for downwardly adjusting Silver’s
offense level for acceptance of responsibility. We note, however,
that Silver pled not guilty, forced the government to proceed to
trial, and then testified at trial that he did not sell crack
cocaine. The Guidelines commentary explains that an adjustment for
acceptance of responsibility “is not intended to apply to a
defendant who puts the government to its burden of proof at trial
by denying the essential factual elements of guilt.” U.S.S.G.
§ 3E1.1, comment. (n.2); see United States v. Dickerson, 114 F.3d
464, 470 (4th Cir. 1997) (“Although a defendant can remain eligible
for a sentence reduction for acceptance of responsibility even when
he demands a trial, this is only when a defendant goes to trial to
assert and preserve issues that do not relate to factual guilt--
such as a constitutional challenge to a statutory provision . . .
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.”) (internal quotation marks omitted). Our review of the record
reveals no apparent basis for awarding an adjustment for acceptance
of responsibility; however, we will leave this for the district
court to consider as part of Silver’s resentencing.
VACATED AND REMANDED
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