                               UNPUBLISHED

                      UNITED STATES COURT OF APPEALS
                          FOR THE FOURTH CIRCUIT


                               No. 05-4872



UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee,

             versus


MARK ADAM SILVER,

                                                 Defendant - Appellant.



Appeal from the United States District Court for the District of
South Carolina, at Greenville. Henry F. Floyd, District Judge.
(CR-05-451-HFF)


Submitted:    October 11, 2006               Decided:   December 5, 2006


Before TRAXLER and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed in part; vacated and remanded in part by unpublished per
curiam opinion.


Beattie B. Ashmore, PRICE, PASCHAL & ASHMORE, P.A., Greenville,
South Carolina, for Appellant. Jonathan Scott Gasser, Assistant
United States Attorney, Columbia, South Carolina, Maxwell Barnes
Cauthen, III, OFFICE OF THE UNITED STATES ATTORNEY, Greenville,
South Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

                Mark Adam Silver pled guilty to one count of possession

of child pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B)

(2000).        He was sentenced to fifty months in prison.          His attorney

has filed a brief in accordance with Anders v. California, 386 U.S.

738 (1967), asserting that Silver’s sentence is unreasonable but

stating that there are no meritorious grounds for appeal.                   Silver

has filed a pro se informal brief raising additional issues,1

including the district court’s failure to rule on his objection to

the presentence report (PSR).            We affirm the conviction.        However,

because the district court did not resolve Silver’s objection to

the PSR, we vacate the sentence and remand for resentencing.

                Silver’s base offense level was 17.        See U.S. Sentencing

Guidelines Manual § 2G2.2(a) (2003). Two levels were added because

the material involved a prepubescent minor or a minor under age

twelve, see USSG § 2G2.2(b)(1), and four levels were added because

some material depicted sadistic, masochistic, or other violent

conduct.        See USSG § 2G2.2(b)(3).      The offense level was increased

by two levels because the offense involved use of a computer, see

USSG       §   2G2.2(b)(5),   and   by   three   levels   because   the    offense

involved at least 150, but fewer than 300, images.                        See USSG

§ 2G2.2(b)(6)(B).        Three levels were subtracted for acceptance of

responsibility.        See USSG § 3E1.1.         Silver’s total offense level


       1
        The motion to file the supplemental brief is granted.

                                         - 2 -
was 25.       His criminal history category was I, and his advisory

guideline range was 57-71 months.

              Silver objected to the four-level increase based on the

depiction of sadistic, masochistic, or other violent conduct.                       At

sentencing, the district court failed to rule on the objection.

Rather, the court merely stated that a ruling in Silver’s favor

would result in a guideline range of 37-46 months, while an

unfavorable     ruling    would       result    in   a   range     of   57-71   months.

Without deciding the contested issue, the court sentenced Silver to

fifty months in prison.        The court stated that it was taking into

account the factors set forth at 18 U.S.C.A. § 3553(a) (West 2000

& Supp. 2006) when imposing sentence.

              After United States v. Booker, 543 U.S. 220 (2005), we

review    a    sentence   to   determine         whether      it    “is   within   the

statutorily     prescribed     range      and    .   .   .   reasonable.”       United

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

omitted).      Hughes prescribed a specific methodology for district

courts to follow when sentencing defendants. The first step is for

the   court    to   “correctly        determine,     after       making   appropriate

findings of fact, the applicable guideline range.”                        Hughes, 401

F.3d at 432.        A district court’s failure to make a necessary

factual   finding    renders      a    sentence      procedurally       unreasonable.

United States v. Moreland, 437 F.3d 424, 434 (4th Cir.), cert.

denied, 126 S. Ct. 2054 (2006).


                                         - 3 -
           Here, the district court did not comply with the first

step of the Hughes model:        by not ruling on Silver’s objection to

the four-level increase, the court failed to make a necessary

finding   of    fact.      For   this    reason,     Silver’s    sentence   is

procedurally unreasonable, and we must vacate his sentence and

remand for resentencing.

           In accordance with Anders, we have reviewed the entire

record    for   any     meritorious     issues     and    have   found   none.2

Accordingly, we affirm the conviction but vacate the sentence and

remand for resentencing. This court requires counsel to inform his

client, in writing, of his right to petition the Supreme Court of

the United States for further review.            If the client requests that

a petition be filed, but counsel believes that such a petition

would be frivolous, then counsel may move this court for leave to

withdraw from representation.         Counsel’s motion must state that a

copy of the motion was served on the client.             We dispense with oral

argument because the facts and legal contentions are adequately set




     2
      The additional issues raised in the pro se brief do not
warrant reversal.    First, Silver merely speculates that an
investigator was related to his probation officer and that the
existence of the relationship caused the investigator to exert
undue influence over the probation officer when she prepared the
PSR. Second, home detention as a sentencing option is a matter
that the district court may, if appropriate, consider at
resentencing.

                                      - 4 -
forth in the materials before the court and argument would not aid

the decisional process.



                                                 AFFIRMED IN PART;
                                      VACATED AND REMANDED IN PART




                              - 5 -
