                                                   Filed:   July 6, 2007

                   UNITED STATES COURT OF APPEALS

                       FOR THE FOURTH CIRCUIT


                              No. 06-4978
                            (3:05-cr-00407)


UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee,

          versus



EVERETT LESLIE WILLIAMS,

                                                 Defendant - Appellant.


                               O R D E R


     The court amends its opinion filed July 5, 2007, as follows:

     On page 3, the first sentence of the third full paragraph is

amended by substituting the word “defendant” for “government.”



                                           For the Court - By Direction

                                              /s/ Patricia S. Connor
                                                      Clerk
                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 06-4978



UNITED STATES OF AMERICA,

                                             Plaintiff - Appellee,

          versus


EVERETT LESLIE WILLIAMS,

                                            Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Robert J. Conrad, Jr.,
Chief District Judge. (3:05-cr-00407)


Submitted: May 30, 2007                       Decided:   July 5, 2007


Before WILLIAMS, Chief Judge, and NIEMEYER and TRAXLER, Circuit
Judges.


Affirmed in part, vacated in part, and remanded by unpublished per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


Kevin A. Tate, Federal Defenders of Western North Carolina, Inc.,
Charlotte, North Carolina, for Appellant. Gretchen C.F. Shappert,
United States Attorney, Thomas Cullen, Assistant United States
Attorney, Charlotte, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

           After he stole two diamond rings from a jewelry store

clerk, sold one ring in a different state and attempted to sell the

other ring, Everett Leslie Williams pled guilty to conspiracy to

defraud the United States, 18 U.S.C. § 371 (2000) (Count One);

transportation of stolen goods, 18 U.S.C. §§ 2314,* 2 (2000) (Count

Two); and sale of stolen goods, 18 U.S.C. §§ 2315, 2 (2000) (Count

Three).    The district court overruled Williams’ objections to the

presentence report and adopted the recommended enhancements for a

loss in excess of $51,000 and theft from the person of another.

U.S. Sentencing Guidelines Manual § 2B1.1(b)(1)(D), (b)(3) (2005).

The court also departed above the advisory guideline range of 30-37

months pursuant to USSG § 4A1.3, p.s., and imposed concurrent

sentences of five years (the statutory maximum) for Count One, and

ninety-six months for Counts Two and Three.        Williams appeals his

sentence, arguing that (1) the district court’s factual findings

concerning the sentence violated the Fifth and Sixth Amendments

under United States v. Booker, 543 U.S. 220 (2005), (2) the

district court’s upward departure was unreasonable, and (3) the

district   court   failed   to   make   findings   of   fact   to   support

enhancements for the loss amount and theft from a person.               We

affirm the district court’s calculation of the advisory guideline


     *
      Count Two of the indictment charged a violation of 18 U.S.C.
§ 2314. The presentence report and the judgment order erroneously
state that Count Two charged a violation of 18 U.S.C. § 2313.

                                  - 2 -
range, but conclude that the court’s explanation for the departure

was inadequate.     We therefore vacate the sentence and remand for

further proceedings.

             Williams first contends that this Circuit’s precedents

have effectively made the guidelines mandatory despite Booker and

that, consequently, the district court’s factual findings violated

the Fifth and Sixth Amendments.         We disagree and, in any case, may

not overrule the decision of another panel.                  United States v.

Chong, 285 F.3d 343, 346 (4th Cir. 2002).

             Next, we conclude that the district court’s decision to

depart upward was reasonable.          See    United States v. Dalton, 477

F.3d 195, 197 (4th Cir. 2007) (standard of review).                 The court

noted that no criminal history points were given for eleven of

Williams’ prior sentences, that ten of the prior offenses were

felonies involving conduct similar to that underlying the instant

offenses and     that   they   were    committed     while   Williams   was   on

probation or free on bond.            However, given the extent of the

departure, the district court’s explanation of its reasons for

departing to a sentence of ninety-six months was inadequate.

             We agree   with   the defendant that        the district court

erred when it structured       the    departure by treating Williams as a

de facto career offender. A defendant may be sentenced under § 4A1.3

as a de facto career offender if he would qualify for sentencing as

a   career   offender   but    for    the     fact   that one or both of his


                                      - 3 -
predicate     convictions   may    not   be   counted.      United      States   v.

Harrison, 58 F.3d 115, 118 (4th Cir. 1995).                  Williams had the

necessary predicate convictions, but did not otherwise qualify as

a career offender because the instant offenses are not crimes of

violence.      See USSG § 4B1.1.

              The district court’s alternative explanation for the

ninety-six-month sentence did not comply with the procedure set out

in § 4A1.3(a)(4)(B) for a departure above category VI, which states

that    the    court    “should   structure     the    departure     by    moving

incrementally down the sentencing table to the next higher offense

level in Criminal History Category VI until it finds a guideline

range appropriate to the case.”          See Dalton, 477 F.3d at 199.            The

district court arrived at an offense level of 24 (reduced to 21 for

acceptance of responsibility) and a range of 77-96 months by

treating Williams as a de facto career offender.             The court did not

explain how, using the alternative extrapolation method, it again

arrived at a sentence of ninety-six months.            Because the departure

sentence was more than two and a half times the top of the advisory

guideline range, a “more extensive justification” for the extent of

the    departure   is    necessary.      Dalton,      477   F.3d   at     199-200.

Therefore, we vacate the sentence and remand for resentencing.

              Williams also argues that, if the district court did not

violate his Fifth and Sixth Amendment rights, the sentence was

unreasonable because the court failed to make factual findings


                                      - 4 -
concerning the amount of loss and theft from the person of another.

He acknowledges that the court adopted the recommendations in the

presentence report, but maintains that the court’s failure to make

explicit findings makes the sentence procedurally unreasonable.

see United States v. Johnson, 445 F.3d 339, 344 (4th Cir. 2006)

(reasonableness has both procedural and substantive aspects).          In

this case, the district court’s decision to overrule Williams’

factual objections and adopt the calculation in the presentence

report did not require detailed findings because undisputed facts

supported both contested enhancements.

           We therefore affirm the district court’s decision to

apply enhancements for loss and theft from a person under USSG

§   2B1.1(b)(1)(D)   and    (b)(3).    However,    because   the   court’s

explanation of its upward departure was insufficient, we vacate the

sentence   and remand for further proceedings.           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




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