                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 03-4758



UNITED STATES OF AMERICA,

                                             Plaintiff - Appellee,

          versus


SAMUEL E. SAVILLA,

                                            Defendant - Appellant.



         On Remand from the United States Supreme Court.
                       (S. Ct. No. 04-7648)


Submitted:   February 3, 2006             Decided:   March 21, 2006


Before WILKINSON, LUTTIG, and GREGORY, Circuit Judges.


Affirmed in part; vacated and remanded in part by unpublished per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


Mary Lou Newberger, Federal Public Defender, Edward H. Weis,
Assistant Federal Public Defender, Jonathan D. Byrne, Appellate
Counsel, Charleston, West Virginia, for Appellant. Kasey Warner,
United States Attorney, R. Booth Goodwin II, Assistant United
States Attorney, Charleston, West Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

             This case is before us on remand from the United States

Supreme     Court.         We    previously    affirmed      Samuel    E.   Savilla’s

conviction following a guilty plea for cultivating greater than

twenty marijuana plants in violation of 21 U.S.C. § 841 (2000), as

well   as    his    resulting          eighteen-month     sentence.        See   United

States      v.    Savilla,       No.    03-4758    (4th     Cir.   Sept.    9,    2004)

(unpublished). The Supreme Court vacated our decision and remanded

Savilla’s        case    for    further    consideration      in   light    of   United

States v. Booker, 125 S. Ct. 738 (2005).

             A Sixth Amendment error occurs when a district court

imposes a sentence greater than the maximum permitted based on

facts found by a jury or admitted by the defendant.                    Booker, 125 S.

Ct. at 756.             Because Savilla did not raise a Sixth Amendment

challenge or object to the mandatory application of the guidelines

in the district court, our review is for plain error.                            United

States v. Hughes, 401 F.3d 540, 547 (4th Cir. 2005).

             Savilla’s          plea    supports   a      conclusion    that     he   is

responsible for the cultivation of two kilograms of marijuana.

These facts correspond with an offense level of ten.                           See U.S.

Sentencing Guidelines Manual §§ 2D1.1(c)(15) (2003). Combined with

his criminal history category of one, this offense level yields a

sentencing range of six to twelve months’ imprisonment.                        See USSG

Ch. 5, Pt. A, table. Savilla’s sentence of eighteen months exceeds


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this range.        Because this error affects Savilla’s substantial

rights, we conclude it is plainly erroneous.*                    See Hughes, 401 F.3d

at 547-48.

            Accordingly,         we       vacate    the   sentence     imposed      by    the

district court and remand for resentencing in accordance with

Booker.      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.”       125 S. Ct. at 767.               On remand, the district court

should first determine the appropriate sentencing range under the

Guidelines,       making   all    factual          findings   appropriate       for      that

determination. See United States v. Hughes, 401 F.3d 540, 546 (4th

Cir. 2005) (applying Booker on plain error review).                            The court

should consider this sentencing range along with the other factors

described    in    18    U.S.C.       §    3553(a)    (2000),    and    then    impose      a

sentence.     Id.       If that sentence falls outside the Guidelines

range, the court should explain its reasons for the departure as

required by 18 U.S.C. § 3553(c)(2) (2000).                    Id.    The sentence must

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

Id. at 546-47.          We affirm Savilla’s conviction for the reasons


     *
      Just as we noted in United States v. Hughes, 401 F.3d 540,
545 n.4 (4th Cir. 2005), “[w]e of course offer no criticism of the
district judge, who followed the law and procedure in effect at the
time” of Savilla’s sentencing. 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 settled and clearly contrary
to the law at the time of appeal.”).

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stated in our prior opinion of September 9, 2004.       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 AND REMANDED IN PART




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