UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 04-4701

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

DENNY ELLIS, a/k/a C. Duain Ellis, a/k/a Duain

C. Ellis,

Defendant - Appellant.

Appeal from the United States District Court for the District of

South Carolina, at Anderson. Henry M. Herlong, Jr., District

Judge. (CR-04-450)

Submitted: September 14, 2005 Decided: October 31, 2005

Before NIEMEYER, WILLIAMS, and SHEDD, Circuit Judges.

Affirmed in part, vacated in part, and remanded by unpublished per

curiam opinion.

Benjamin T. Stepp, Assistant Federal Public Defender, Greenville,

South Carolina, for Appellant. Kevin Frank McDonald, OFFICE OF THE

UNITED STATES ATTORNEY, Columbia, South Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

See Local Rule 36(c).
1

The Government elected not to file a brief.

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PER CURIAM:

Denny Ellis appeals his sentence of twenty-four months in

prison and three years of supervised release after pleading guilty

without a plea agreement to one count of falsely representing a

number to be his social security number in violation of 42 U.S.C.

§ 408(a)(7)(B) (2000). Ellis’s attorney filed a brief pursuant to

Anders v. California, 386 U.S. 738 (1967), stating there are no

meritorious grounds for appeal but raising the issue of whether the

district court committed plain error in determining the loss amount

under the sentencing guidelines when it failed to apply a credit

against the loss for the amount of collateral pledged or otherwise

provided by Ellis. Ellis filed pro se supplemental briefing

further addressing this issue and raising the issue of whether his

sentence constituted plain error under United States v. Booker, 125

S. Ct. 738 (2005).1 We affirm Ellis’s conviction but vacate his

sentence and remand for resentencing.

Because Ellis raised no objection at sentencing, we

review only for plain error. United States v. Olano, 507 U.S. 725,

731-32 (1993); United States v. Hughes, 401 F.3d 540, 547 (4th Cir.

2005). “We review de novo the district court’s legal

interpretation of the term ‘loss’ under the Sentencing Guidelines,

but ‘to the extent that the determination of the amount of loss is

a factual matter, we review only for clear error.’” United
2

We agree with Ellis that the record does not reflect any

agreement to forego a credit under USSG § 2B1.1 app. n.3(E)(ii).

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States v. Castner, 50 F.3d 1267, 1274 (4th Cir. 1995) (citations

omitted). To the extent the district court’s determination of

Ellis’s sentence under the former mandatory guidelines system was

based on facts not established by his plea of guilty or admitted by

him, we will find plain error if the district court could not have

imposed the sentence it did without exceeding the relevant Sixth

Amendment limitation. See Hughes, 401 F.3d at 550-51.

Under United States Sentencing Guidelines Manual (“USSG”)

§ 2B1.1 app. n.3(A) (2003), “loss is the greater of actual loss or

intended loss.” Where there is a common scheme or course of

conduct, the cumulative loss should be used in determining the

offense level, regardless of the number of counts of conviction.

USSG § 2B1.1 app. n.17. We have held “that the amount recovered or

reasonably anticipated to be recovered from collateral that secures

a loan should be considered in calculating the amount of actual

loss.” United States v. Rothberg, 954 F.2d 217, 219 (4th Cir.

1992); see also USSG § 2B1.1 app. n.3(E)(ii).

In this case, Ellis acknowledged at his change of plea

hearing that the loss amounts from dismissed counts could be

considered for guideline and restitution purposes, and he

cooperated with the Government in determining the loss amounts

involved.2 Based on those figures, the actual loss under the
3

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.

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guidelines was $64,182.07. However, the district court determined

his sentence based on a loss amount of $134,450.35, without the

required reduction for recovery of collateral. Ellis’s counsel

suggests that “[b]ecause it is not clear that Ellis intended to

repay the banks and keep them from suffering any loss, the district

court did not commit error in failing to reduce the guideline loss

amount by the value of the recovered collateral.” However, while

the district court could have determined that Ellis’s intended loss

exceeded the actual loss, no such finding appears anywhere in the

record. Moreover, to the extent the district court made such a

finding, it would be based on facts not established by Ellis’s plea

of guilty or admitted by him.

In accordance with Anders, we have reviewed the entire

record in this case and find no basis upon which Ellis’s conviction

can be attacked. We conclude, however, that the district court

plainly erred in sentencing Ellis based on a loss exceeding the

actual loss amount of $64,182.07. Accordingly, we affirm Ellis’s

conviction, but vacate his sentence and remand for resentencing.3
§ 3553(c)(2) (2000). Id. The sentence must be “within the

statutorily prescribed range . . . and reasonable.” Id. at 546-47.

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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 IN PART, AND REMANDED