UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 04-4959

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

ROBERT EDWARD SILLS, a/k/a Bobby,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern

District of Virginia, at Norfolk. Jerome B. Friedman, District

Judge. (CR-03-148)

Submitted: July 15, 2005 Decided: August 3, 2005

Before MOTZ, GREGORY, and SHEDD, Circuit Judges.

Affirmed in part; vacated and remanded in part by unpublished per

curiam opinion.

Jesse Edgar Demps, Portsmouth, Virginia, for Appellant. Laura

Marie Everhart, Assistant United States Attorney, Norfolk,

Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

See Local Rule 36(c).
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PER CURIAM:

Robert Edward Sills appeals his sentence of 235 months’

imprisonment for a conviction following his guilty plea to one

count of conspiracy to distribute and possess with intent to

distribute cocaine and cocaine base in violation of 21 U.S.C. § 846

(2000). Sills’ attorney filed a brief pursuant to Anders v.

California, 386 U.S. 738 (1967), stating that he has reviewed the

record and has not found any meritorious grounds for appeal. In

his Anders brief, Sills’ counsel raised one issue related to the

calculation of Sills’ sentence: that the court violated Sills’ due

process rights in calculating his sentence based upon a large

quantity of drugs improperly attributed to him. Although informed

of his right to do so, Sills has not filed a pro se supplemental

brief. 

In accordance with the requirements of Anders, we have

reviewed the entire record in this case, and we have found a

meritorious ground for appeal: that Sills’ sentence violated the

rule announced in United States v. Booker, 125 S. Ct. 738 (2005).

In United States v. Hughes, 401 F.3d 540, 547 (4th Cir. 2005), we

held that when a sentence calculated under the Sentencing

Guidelines exceeds the maximum sentence authorized by facts found

by the jury alone or admitted by the defendant, the defendant could

demonstrate plain error that warranted resentencing under Booker.

Because it is undisputed that the district court made factual
1Just as we noted in United States v. Hughes, 401 F.3d 540,

545 n.4 (4th Cir. 2005), “we of course offer no criticism of the

district judge, who followed the law and procedure in effect at the

time” of Sills’ sentencing.

2

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 Hughes, 401 F.3d at 546. 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.

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determinations beyond facts Sills admitted that increased his

sentence, we find plain error occurred and that Sills is entitled

to resentencing.1 Accordingly, we affirm Sills’ conviction but

vacate his sentence and remand for resentencing “consistent with

the remedial scheme set forth in Justice Breyer’s opinion for the

Court in Booker.”2 Id. at 544.

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