UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4624
UNITED STATES OF AMERICA,
Plaintiff - Appellant,
versus
TRAVIS MONTREAL SANTIAGO,
Defendant - Appellee.
Appeal from the United States District Court for the Western
District of North Carolina, at Asheville. Lacy H. Thornburg,
District Judge. (1:06-cr-00051)
Submitted: November 26, 2007 Decided: December 10, 2007
Before WILKINSON, KING, and DUNCAN, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
Gretchen C. F. Shappert, United States Attorney, Charlotte, North
Carolina, Don D. Gast, Assistant United States Attorney, Asheville,
North Carolina, for Appellant. Andrew B. Banzhoff, DEVEREUX &
BANZHOFF, PLLC, Asheville, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Travis Montreal Santiago pled guilty to being a felon in
possession of a firearm in violation of 18 U.S.C. § 922(g) (2000).
The probation officer made the following recommendations in
Santiago’s presentence report (“PSR”): the base offense level was
20 under U.S. Sentencing Guidelines Manual § 2K2.1 (2006);
following the cross-references in USSG § 2K2.1(c)(1) and § 2X1.1,
Santiago’s base offense level was increased to 28 because he
possessed the weapon while also possessing with intent to
distribute crack cocaine, a crime with a base offense level of 28
under USSG § 2D1.1(c)(6); two levels were added under USSG
§ 2D1.1(b)(1) because Santiago possessed a dangerous weapon; the
adjusted offense level of 30 was decreased by three levels for
acceptance of responsibility, under USSG § 3E1.1, giving him a
total offense level of 27; with his criminal history category of
IV, Santiago had an advisory sentencing range of 100-125 months,
which was reduced to 100-120 months because ten years was the
maximum sentence.
At the sentencing hearing, the district court granted
Santiago’s objections to his eight-level enhancement under USSG
§ 2K2.1(c)(1) and his two-level enhancement under § 2D1.1(b)(1).
The record is undisputed that the district court granted Santiago’s
objections on the basis of defense counsel’s argument that the
enhancements were legally precluded by the Sixth Amendment.
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Counsel relied on United States v. Booker, 543 U.S. 220 (2005), and
related cases as the basis for granting this legal objection. The
Government timely appeals, alleging that the enhancements are not
precluded by the Sixth Amendment. For the reasons that follow, we
vacate the sentence and remand for resentencing.
We review a district court’s legal conclusions regarding
the Sentencing Guidelines de novo. United States v. Allen, 446
F.3d 522, 527 (4th Cir. 2006). Although we review a post-Booker
sentence for reasonableness, requiring the district court to
consider “the extent to which the sentence imposed by the district
court comports with the various, and sometimes competing, goals of
§ 3553(a),” United States v. Moreland, 437 F.3d 424, 433 (4th
Cir.), cert. denied, 126 S. Ct. 2054 (2006), underlying legal
determinations are still reviewed de novo. Id. After Booker,
courts must calculate the appropriate Sentencing Guidelines range,
consider the range in conjunction with other relevant factors under
the Guidelines and 18 U.S.C.A. § 3553(a) (West 2000 & Supp. 2007),
and impose a sentence. If a district court imposes a sentence
outside the advisory range, the court must state its reasons for
doing so. United States v. Hughes, 401 F.3d 540, 546 (4th Cir.
2005).
Here, the district court failed to properly calculate
Santiago’s advisory sentencing range as required by Hughes and
related cases. See United States v. Green, 436 F.3d 449, 456 (4th
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Cir. 2006) (noting a sentencing court’s first step is to properly
calculate the sentencing range under the advisory Sentencing
Guidelines). Rather, the court determined it was precluded by the
Sixth Amendment from enhancing Santiago’s sentence based on facts
not admitted by him or found by a jury. This was error. See Rita
v. United States, 127 S. Ct. 2456, 2465-66 (2007) (“This Court’s
Sixth Amendment cases do not automatically forbid a sentencing
court to take account of factual matters not determined by a jury
and to increase the sentence in consequence. Nor do they prohibit
the sentencing judge from taking account of the Sentencing
Commission’s factual findings or recommended sentences.”
(citations omitted)). Thus, without commenting on the propriety of
the calculations in the PSR or the factual findings contained
therein, we vacate and remand to the district court noting that the
court is not precluded by Booker, or its progeny, from considering
facts not admitted by Santiago or found by a jury.
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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