UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-5169
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
MICKEY EDWARD RATTLER,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Bryson City. Lacy H. Thornburg,
District Judge. (CR-03-40)
Submitted: October 16, 2006 Decided: March 8, 2007
Before MICHAEL and MOTZ, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Vacated and remanded by unpublished per curiam opinion.
David B. Betts, Columbia, South Carolina, for Appellant. Gretchen
C. F. Shappert, United States Attorney, Don D. Gast, Assistant
United States Attorney, Asheville, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Mickey Rattler appeals his sentence imposed after remand
for resentencing for violation of 18 U.S.C. §§ 113(a)(6), 1153
(2000), assault inflicting serious injury within the Eastern Band
of the Cherokee Indian Reservation. Rattler’s sentence was vacated
and remanded to the district court for reconsideration in light of
United States v. Booker, 543 U.S. 220 (2005), and United States v.
Hughes, 401 F.3d 540 (4th Cir. 2005). On appeal after
resentencing, Rattler argues that his sentence is unreasonable
because the district court did not adequately explain the reasons
for its upward variance from the Sentencing Guidelines range in
consideration of the 18 U.S.C.A. § 3553(a) (West 2000 & Supp. 2006)
factors. The Government argues that the sentence is reasonable
because it falls within what would have been the properly
calculated Guidelines range had the court not mistakenly believed
that it was bound by jury findings. For the reasons that follow,
we vacate Rattler’s sentence and remand for resentencing.
We review a district court’s sentence for
unreasonableness, see Booker, 543 U.S. at 261, which “will largely
depend upon the specific facts of each case and the district
court’s consideration and application of the § 3553(a) factors to
those facts.” United States v. Hampton, 441 F.3d 284, 287 (4th
Cir. 2006). A post-Booker sentence may be unreasonable for
procedural and substantive reasons. “A sentence may be
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procedurally unreasonable, for example, if the district court
provides an inadequate statement of reasons . . . . A sentence may
be substantively unreasonable if the court relies on an improper
factor or rejects policies articulated by Congress or the
Sentencing Commission.” United States v. Moreland, 437 F.3d 424,
434 (4th Cir.) (citations omitted), cert. denied, 126 S. Ct. 2054
(2006).
At the resentencing hearing, the Government argued that
the calculation of the Guidelines range should not be different
than the original calculation, and that the resentencing should
only focus on what is a reasonable sentence in light of the
previously established, now advisory, Guidelines range. Rattler
argued that the Guidelines range must be recalculated based only on
facts found by the jury. While the district court did not make a
distinct ruling on whether it believed it was still bound only by
jury findings when calculating the Guidelines range, the court’s
Guidelines calculation indicates that on remand the court
erroneously believed that it was bound to recalculate the range
based only on jury findings. See United States v. Morris, 429 F.3d
65, 72 (4th Cir. 2005), cert. denied, 127 S. Ct. 121 (2006) (a
sentencing court treating the Guidelines as advisory continues to
make factual findings concerning sentencing factors by a
preponderance of the evidence). The court therefore calculated
Rattler’s new Guidelines range to be 30-37 months of imprisonment,
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based on the jury findings alone. After calculating the new
Guidelines range, the district court decided to impose a variance
sentence above the Guidelines range, stating that a sentence within
the Guidelines range “would not be reasonable in a case in which
such major serious injuries were inflicted and the manner of
inflicting the injuries as appears from the evidence in this case.”
(J.A. 21). The district court therefore imposed a sixty-three
month term of imprisonment.
After Booker rendered the Sentencing Guidelines advisory,
see 543 U.S. at 245, a district court must:
(1) properly calculate the sentence range
recommended by the Sentencing Guidelines;
(2) determine whether a sentence within that
range and within statutory limits serves the
factors set forth in § 3553(a), and, if not,
select a sentence that does serve those
factors; (3) implement mandatory statutory
limitations; and (4) articulate the reasons
for selecting the particular sentence,
especially explaining why a sentence outside
of the Sentencing Guideline range better
serves the relevant sentencing purposes set
forth in § 3553(a).
United States v. Green, 436 F.3d 449, 456 (4th Cir. 2006). A
sentence “based on an error in construing or applying the
Guidelines, . . . will be found unreasonable and vacated.” Id. at
457. Here, because the district court erroneously believed it was
bound by the jury findings in determining the proper advisory
Guidelines range, we vacate the sentence imposed and remand for a
proper calculation of the Guidelines range and a reconsideration of
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whether a sentence within that range is consistent with the
§ 3553(a) factors. We continue to affirm the portion of the
judgment assessing restitution, as noted in our previous opinion.
We express no opinion on the reasonableness of the length of the
sentence previously imposed. We deny Rattler’s motion to expedite
consideration of the appeal. 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
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