                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 07-4624



UNITED STATES OF AMERICA,

                                            Plaintiff - Appellant,

          versus


TRAVIS MONTREAL SANTIAGO,

                                             Defendant - Appellee.


Appeal from the United States District Court for the Western
District of North Carolina, at Asheville.  Lacy H. Thornburg,
District Judge. (1:06-cr-00051)


Submitted:   November 26, 2007         Decided:     December 10, 2007


Before WILKINSON, KING, and DUNCAN, Circuit Judges.


Vacated and remanded by unpublished per curiam opinion.


Gretchen C. F. Shappert, United States Attorney, Charlotte, North
Carolina, Don D. Gast, Assistant United States Attorney, Asheville,
North Carolina, for Appellant.     Andrew B. Banzhoff, DEVEREUX &
BANZHOFF, PLLC, Asheville, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

              Travis Montreal Santiago pled guilty to being a felon in

possession of a firearm in violation of 18 U.S.C. § 922(g) (2000).

The   probation      officer   made     the    following       recommendations    in

Santiago’s presentence report (“PSR”): the base offense level was

20    under   U.S.    Sentencing     Guidelines        Manual    §   2K2.1   (2006);

following the cross-references in USSG § 2K2.1(c)(1) and § 2X1.1,

Santiago’s base offense level was increased to 28 because he

possessed      the    weapon   while    also     possessing      with   intent    to

distribute crack cocaine, a crime with a base offense level of 28

under   USSG    §    2D1.1(c)(6);      two    levels    were    added   under   USSG

§ 2D1.1(b)(1) because Santiago possessed a dangerous weapon; the

adjusted offense level of 30 was decreased by three levels for

acceptance of responsibility, under USSG § 3E1.1, giving him a

total offense level of 27; with his criminal history category of

IV, Santiago had an advisory sentencing range of 100-125 months,

which was reduced to 100-120 months because ten years was the

maximum sentence.

              At the sentencing hearing, the district court granted

Santiago’s objections to his eight-level enhancement under USSG

§ 2K2.1(c)(1) and his two-level enhancement under § 2D1.1(b)(1).

The record is undisputed that the district court granted Santiago’s

objections on the basis of defense counsel’s argument that the

enhancements        were   legally    precluded    by    the    Sixth   Amendment.


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Counsel relied on United States v. Booker, 543 U.S. 220 (2005), and

related cases as the basis for granting this legal objection.             The

Government timely appeals, alleging that the enhancements are not

precluded by the Sixth Amendment.       For the reasons that follow, we

vacate the sentence and remand for resentencing.

            We review a district court’s legal conclusions regarding

the Sentencing Guidelines de novo.          United States v. Allen, 446

F.3d 522, 527 (4th Cir. 2006).        Although we review a post-Booker

sentence    for   reasonableness,    requiring   the   district   court   to

consider “the extent to which the sentence imposed by the district

court comports with the various, and sometimes competing, goals of

§ 3553(a),” United States v. Moreland, 437 F.3d 424, 433 (4th

Cir.), cert. denied, 126 S. Ct. 2054 (2006),             underlying legal

determinations are still reviewed de novo.             Id.   After Booker,

courts must calculate the appropriate Sentencing Guidelines range,

consider the range in conjunction with other relevant factors under

the Guidelines and 18 U.S.C.A. § 3553(a) (West 2000 & Supp. 2007),

and impose a sentence.      If a district court imposes a sentence

outside the advisory range, the court must state its reasons for

doing so.    United States v. Hughes, 401 F.3d 540, 546 (4th Cir.

2005).

            Here, the district court failed to properly calculate

Santiago’s advisory sentencing range as required by Hughes and

related cases.     See United States v. Green, 436 F.3d 449, 456 (4th


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Cir. 2006) (noting a sentencing court’s first step is to properly

calculate   the    sentencing   range   under    the   advisory    Sentencing

Guidelines).      Rather, the court determined it was precluded by the

Sixth Amendment from enhancing Santiago’s sentence based on facts

not admitted by him or found by a jury.          This was error.      See Rita

v. United States, 127 S. Ct. 2456, 2465-66 (2007) (“This Court’s

Sixth Amendment cases do not automatically forbid a sentencing

court to take account of factual matters not determined by a jury

and to increase the sentence in consequence.           Nor do they prohibit

the   sentencing    judge    from   taking   account    of   the   Sentencing

Commission’s       factual   findings       or   recommended       sentences.”

(citations omitted)). Thus, without commenting on the propriety of

the calculations in the PSR or the factual findings contained

therein, we vacate and remand to the district court noting that the

court is not precluded by Booker, or its progeny, from considering

facts not admitted by Santiago or found by a jury.

            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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