                               UNPUBLISHED

                      UNITED STATES COURT OF APPEALS
                          FOR THE FOURTH CIRCUIT


                               No. 03-4536



UNITED STATES OF AMERICA,

                                                Plaintiff - Appellee,

          versus


SUSAN HOUCHINS,

                                               Defendant - Appellant.



                               No. 03-4537



UNITED STATES OF AMERICA,

                                                Plaintiff - Appellee,

             versus


KENNETH WAYNE HALEY,

                                               Defendant - Appellant.



     On Remand from the Supreme Court of the United States.
                      (S. Ct. No. 04-5647)
                         ______________

Submitted:    July 28, 2006              Decided:   September 22, 2006


Before MOTZ, KING, and GREGORY, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.


Mary Lou Newberger, Federal Public Defender, Jonathan D. Byrne,
Appellate Counsel, David R. Bungard, Assistant Federal Public
Defender, Charleston, West Virginia; Sante Boninsegna, Jr.,
BONINSEGNA LAW OFFICE, Princeton, West Virginia, for Appellants.
Charles T. Miller, Acting United States Attorney, Joanne Vella
Kirby, Assistant United States Attorney, Charleston, West Virginia,
for Appellee.


Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).




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PER CURIAM:

           Susan Houchins and Kenneth Wayne Haley (“Appellants”)

pled guilty in 2003 to conspiracy to manufacture an unspecified

quantity of methamphetamine, 21 U.S.C. § 846 (2000).           The district

court sentenced Houchins to seventy months imprisonment and Haley

to eighty-seven months imprisonment.            This court affirmed their

sentences.     United States v. Houchins, 364 F.3d 182 (4th Cir.

2004),    vacated,   543   U.S.    1104   (2005).      The   Supreme   Court

subsequently   granted     certiorari     and   remanded   their   cases   for

further proceedings in light of United States v. Booker, 543 U.S.

220 (2005).    In supplemental briefs, Appellants assert that the

district court plainly erred by finding facts that increased their

sentences and that the court’s consideration of even essentially

uncontroverted facts to increase the offense level violates the

Sixth Amendment.      For the reasons explained below, we vacate

Appellants’ sentences and remand for resentencing consistent with

Booker.

           Because Appellants did not previously raise a Sixth

Amendment challenge to their sentences, the standard of review is

plain error.   United States v. Hughes, 401 F.3d 540, 547 (4th Cir.

2005).    A Sixth Amendment error occurs when the district court

imposes, under a mandatory guideline scheme, a sentence greater

than the maximum permitted based on facts found by a jury or

admitted by the defendant.        Booker, 543 U.S. at 547-48.


                                    - 3 -
           In a statement made after his arrest, Haley admitted that

he used 2000 ephedrine pills each time he cooked a batch of

methamphetamine.       At their joint guilty plea hearing, Houchins and

Haley admitted responsibility for one ounce of methamphetamine, and

the prosecutor informed the district court that there was no other

relevant conduct.        However, extrapolating from Haley’s statement

and    witness        information       indicating    that        Haley     cooked

methamphetamine three times, the probation officer calculated that

he had produced at least 90 grams (more than three ounces) of

methamphetamine.        For both Haley and Houchins, the probation

officer recommended a base offense level of 26, USSG § 2D1.1(c)(7)

(50-200 grams of methamphetamine); recommended that they each

receive a three-level enhancement for creating a substantial risk

of harm to the community; and recommended that Haley receive a two-

level adjustment for being a leader in the offense.

           Houchins objected to the probation officer’s calculation

of the drug amount because it was based on the use of 60-milligram

ephedrine pills rather than 30-milligram pills, but she withdrew

her objection at sentencing.            Haley did not object to either the

drug   amount    or    the   leadership     role   adjustment      he     received.

Appellants both objected to the substantial risk enhancement, but

the district court overruled their objections.

           We first note that, without the contested three-level

enhancement     for    creating     a   substantial   risk   of    harm     to   the


                                        - 4 -
community, Houchins’s final offense level would have been 26 and

Haley’s final offense level would have been 28.           For purposes of

determining Booker error, this court considers the guideline range

based on the facts the defendant admitted before any adjustment for

acceptance of responsibility.       United States v. Evans, 416 F.3d

298, 300 n.4 (4th Cir. 2005).      Using this calculation, Houchins’s

guideline range would have been unchanged at 70-87 months, and

Haley’s guideline range would have remained at 87-108 months.             The

sentences of seventy months for Houchins and eighty-seven months

for Haley were thus within the range that would have applied

without the contested enhancement for creating a substantial risk

of harm to the community.

            However, the base offense level of 26 that was used was

higher than the base offense level of 20 that would have applied

had   the   probation   officer   used    one   ounce   (28.35   grams)   of

methamphetamine, the quantity that Appellants admitted at the

guilty   plea   hearing.    See   U.S.    Sentencing    Guidelines   Manual

§ 2D1.1(c)(10) (2002) (20-39 grams of methamphetamine). Had a base

offense level of 20 been used, Houchins’s guideline range would

have been 37-46 months.     Even with the leader adjustment, Haley’s

guideline range would have been 46-57 months.

            A defendant’s failure to object to the presentence report

does not constitute an admission of facts set forth in the report

for the purposes of Booker, because “[t]o presume, infer, or deem


                                  - 5 -
a fact admitted because the defendant has remained silent is

contrary to the Sixth Amendment.” United States v. Milam, 443 F.3d

382, 387 (4th Cir. 2006).1            Whether a defendant has admitted a fact

that would otherwise require a jury finding, thus waiving Sixth

Amendment protection for Booker purposes, depends upon where a

defendant’s “verbalizations . . . fall along a spectrum” from

silence      to     “statements   such     as   ‘I   admit,’   or     the    functional

equivalent thereof.” United States v. Revels, 455 F.3d 448, 450-51

(4th       Cir.    2006)   (holding   that      defendant    did    not     admit    facts

supporting          sentencing    enhancement        where   he     lodged        Blakely2

objection and replied “No, sir” to court’s inquiry as to “whether

he had objections to anything contained or omitted from the PSR”).

                  Although Houchins withdrew her objection to the drug

amount at sentencing, and admitted that 60-milligram pills were

used to manufacture the methamphetamine, she did not affirmatively

admit that 90 grams of methamphetamine were produced.                          To reach

that conclusion, the probation officer consulted a chemist for the

West Virginia State Police Laboratory, estimated that Haley would

have produced about 30 grams of methamphetamine in each batch and

estimated,         based   on    witness     information,      that       Haley     cooked


       1
      Milam distinguishes between factual issues that the
sentencing court must resolve pursuant to Rule 32(i)(3), and
factual issues that, under Booker, may only be resolved by a jury
or the defendant’s admission without running afoul of Sixth
Amendment protections. 443 F.3d at 386.
       2
        Blakely v. Washington, 542 U.S. 296 (2004).

                                           - 6 -
methamphetamine three times.         However, after his arrest, Haley

stated that he had produced only three grams of methamphetamine in

the previous day’s cook, and there was no specific information in

the presentence report at to how much methamphetamine had been

produced at the other two cooks.        Because the calculation that 90

grams of methamphetamine were produced required additional fact

finding, we conclude that Houchins’s limited admission concerning

the strength of the ephedrine pills used does not equate to an

admission concerning the quantity of methamphetamine produced.

             A Booker plain error need not be noticed and corrected if

the error was harmless because it did not actually affect the

outcome of the proceedings.       United States v. Smith, 441 F.3d 254,

272-73 (4th Cir. 2006) (declining to correct error where evidence

of   drug   quantity   was    overwhelming    and   uncontroverted).    In

Houchins’s case, the evidence that Haley manufactured 90 grams of

methamphetamine     was      uncontroverted   at    sentencing,   but   not

overwhelming because the probation officer’s estimation was open to

challenge.

            Haley’s statement at the Rule 11 hearing that making

methamphetamine was his idea and he got his two co-defendants

involved constitutes an admission that he was a leader in the

offense.    Therefore, we need not notice the Booker error inherent

in the district court’s adoption of the recommended two-level

adjustment.     However, Haley made no statement concerning how much


                                    - 7 -
methamphetamine he produced, beyond admitting that he had made

three grams of methamphetamine the day before his arrest.           He did

not object to the 90 grams attributed to him in the presentence

report, but under Milam and Revels, his silence may not be taken as

an admission that he produced 90 grams of methamphetamine. Nor, as

previously discussed, was the Booker error harmless, because the

government cannot show that the constitutional error did not

actually affect the outcome of the proceedings.            See Revels, 455

F.3d at 452 (citing United States v. Dominguez Benitez, 542 U.S.

74, 81 & n.7 (2004)). Haley’s eighty-seven-month sentence exceeded

the maximum authorized based on facts he admitted and thus violates

the Sixth Amendment.

            We therefore vacate the sentences imposed by the district

court     and   remand   for   resentencing   consistent    with   Booker.3

Although the sentencing guidelines are no longer mandatory, Booker

makes clear that a sentencing court must still “consult [the]

Guidelines and take them into account when sentencing.”            543 U.S.

at 264.    On remand, the district court should first determine the

appropriate sentencing range under the guidelines, making all

factual findings appropriate for that determination.           Hughes, 401


     3
      Just as we noted in Hughes, “[w]e of course offer no
criticism of the district court judge, who followed the law and
procedure in effect at the time” of Appellants’ sentencing.
Hughes, 401 F.3d at 545 n.4.     See generally Johnson v. United
States, 520 U.S. 461, 468 (1997) (stating that an error is “plain”
if “the law at the time of trial was set and clearly contrary to
the law at the time of appeal.”).

                                   - 8 -
F.3d at 546. The court should consider this sentencing range along

with the other factors described in 18 U.S.C.A. § 3553(a) (West

2000 & Supp. 2006), and then impose a sentence.       Id. If that

sentence falls outside the guidelines range, the court should

explain its reasons for imposing a non-guidelines sentence as

required by 18 U.S.C.A. § 3553(c)(2).   Id.   The sentence must be

“within the statutorily prescribed range and . . . reasonable.”

Id.

          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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