UNPUBLISHED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Vacated and remanded by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit. 
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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