                            UNPUBLISHED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Vacated and remanded by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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




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