                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 06-4904



UNITED STATES OF AMERICA,

                                             Plaintiff - Appellee,

          versus


HOWARD MARK HARTLEY,

                                            Defendant - Appellant.



Appeal from the United States District Court for the Southern
District of West Virginia, at Charleston. Joseph Robert Goodwin,
District Judge. (2:06-cr-00017)


Submitted:   January 31, 2007          Decided:     February 26, 2007


Before WILKINSON and MOTZ, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Vacated and remanded by unpublished per curiam opinion.


Bryant J. Spann, ALLEN GUTHRIE MCHUGH & THOMAS, PLLC, Charleston,
West Virginia, for Appellant. Charles T. Miller, United States
Attorney, Monica L. Dillon, Assistant United States Attorney,
Charleston, West Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

      After Howard Mark Hartley pleaded guilty to manufacturing by

growing   and   cultivating   marijuana    in   violation   of   21   U.S.C.

§ 841(a) (2000), the district court sentenced him to twelve months

imprisonment.     On appeal, Hartley argues that the district court

misunderstood the scope of its discretion under United States v.

Booker, 543 U.S. 220 (2005).

      After reviewing the record, we agree that the district court

may   have   sentenced   Hartley   while   operating   under     an   errant

conception of the scope of its discretion under our precedent.

Under our post-Booker cases, a district court may impose a sentence

below the guidelines range if, after assessing the factors in 18

U.S.C.A. § 3553(a) (West 2006), it believes such a sentence is

“sufficient, but not greater than necessary,” to achieve the goals

of § 3553(a).     See United States v. Davenport, 445 F.3d 366, 370

(4th Cir. 2006). “The farther the court diverges from the advisory

guideline range, the more compelling the reasons for the divergence

must be.”     United States v. Moreland, 437 F.3d 424, 434 (4th Cir.

2006).    Although we do not accord district courts a free hand with

respect to variances, we also do not foreclose a variance if

accompanied by an explanation which makes the final sentence a

reasonable one.    Nothing in this opinion should be read to suggest

that we have formed any view regarding the appropriate outcome of

Hartley’s resentencing.


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     Because   the   record   indicates   that   the   district   court

misunderstood our precedent, we vacate its judgment and remand for

resentencing consistent with this opinion.

                                                 VACATED AND REMANDED




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